Tee (Migration) - [2023] AATA 3571

Tee (Migration) [2023] AATA 3571 (7 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Phoebe Nsin Yee Tee
CASE NUMBER:  2212112
HOME AFFAIRS REFERENCE(S):          BCC2022/2176877
MEMBER:Rachel Westaway
DATE:7 September 2023
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 07 September 2023 at 4:24pm
CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – study history and personal circumstances – fees paid to agent but loss of contact with agent and provider – physical injury and treatment – end of relationship, medical procedure and mental health – no approach to provider for deferral – current enrolment in same course by another provider – mandatory legal consequences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, condition 8202(2)(a)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 August 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a full-time registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 29 August 2023 at 10:00am to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was not represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Background
The applicant is a 27-year-old female from Malaysia.
The applicant was granted a TU-500 visa on 14 October 2019.
Tribunal Application
The applicant lodged their application for review on 18 August 2022. They provided the Department of Home Affairs notification letter, along with their application for review.
On the 21 July 2023 the applicant’s authorised representative submitted the Department of Home Affairs decision record.
On 25 August 2023 the applicant submitted an MR5 form, removing her previous representative and also an email addressed to the Tribunal outlining her desire to stay in Australia and what has happened up to now in relation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Tee (Migration) [2023] AATA 3571
Case: [2023] AATA 3571
Decision Date: 7 September 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the applicant's Student (Class TU) visa (Subclass 500). The applicant, a 27-year-old female from Malaysia, sought to have the cancellation decision set aside.

The central legal issue before the Tribunal was whether the applicant had breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) by failing to maintain enrolment in a full-time registered course of study. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958 (Cth).

The Tribunal found that the applicant had not been enrolled in a registered course since 3 February 2021, thus failing to comply with condition 8202(2)(a). While acknowledging the applicant's stated personal difficulties, including a physical injury, relationship breakdown, and mental health struggles, the Tribunal determined these did not constitute compelling reasons to remain in Australia or excuse her non-compliance. The Tribunal noted that the applicant had not approached her education provider to defer her studies. Considering the totality of the circumstances, including the applicant's non-engagement with her studies and the absence of compelling reasons for her to remain, the Tribunal concluded that the visa cancellation should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.Background The applicant is a 27-year-old female from Malaysia. The applicant was granted a TU-500 visa on 14 October 2019.Tribunal Application The applicant lodged their application for review on 18 August 2022. They provided the Department of Home Affairs notification letter, along with their application for review. On the 21 July 2023 the applicant’s authorised representative submitted the Department of Home Affairs decision record. On 25 August 2023 the applicant submitted an MR5 form, removing her previous representative and also an email addressed to the Tribunal outlining her desire to stay in Australia and what has happened up to now in relation to her studies.Department of Home Affairs Application On 11 July 2022 the Department of Home Affairs sent a Notice of Intention to Consider Cancellation (NOICC) letter to the applicant. The applicant responded to the NOICC stating that: She completed her Certificates II and III English as an Additional Language (EAL) in 2018 and 2019 and had every intention to go on to study her Diploma of Business in 2020, but due to a series of unfortunate incidents outside of her control this was not possible. In April 2020 her school advised they were transferring their teaching to online. She paid her agent the tuition fee and believes the school received this fee. She was not able to start the course immediately. On 28 May 2020 she paid a $3,000 tuition fee to Raych Consulting because they advised her she had to ‘fix’ her CoE. Melbourne subsequently went into lockdown due to the Covid-19 pandemic and she could not contact her agent or her school. In November 2020 she accidently injured her right eye when it was poked by a chopstick. She lost her vision and was referred to eye surgeon Dr Yu on 5 December 2020. She visited the surgeon several times thereafter so he could monitor her recovery. In March 2021 her vision worsened, and she developed recurrent corneal erosion. She was referred to Dr Goh and is expecting to have an operation so that she does not lose her sight. In April 2021 she broke up with her boyfriend. She had [a Medical procedure] and was on her own during this time. Her mental state deteriorated. In May 2021 she discovered her foster-mother, who is her only family, is a gambling addict and has debts to loan sharks. She tried to travel overseas but was unable to find a flight. She became depressed and was unable to concentrate on making any arrangements in relation to her study. She is sorry she was not strong enough to face all of life’s difficulties and that she did not maintain her enrolment. She is willing to change and hopes she is given a second chance. She has complied with all her other visa conditions. She is now enrolled in a Diploma of Business. Her sole purpose for being in Australia is to study so she can get a good job and support herself and her foster-mother. If her visa is cancelled and she is required to return to Malaysia without a good qualification all her time and money would have been a waste. She will not be able to find a good employer. She does not have a higher education so the Diploma of Business will at least enable her to source ‘English related jobs in the business area’. Furthermore, she has yet to have her eye surgery.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Rachel WestawaySenior MemberATTACHMENTMigration Regulations 1994…Schedule 88202(1) The holder must be enrolled in a full time course of study or training if the holder is:(a)a Defence student; or(b) a Foreign Affairs student; or(c) a secondary exchange student.(2) A holder not covered by subclause (1):(a) must be enrolled in a full time registered course; and(b) subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and(c) must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:(a) is enrolled in a course at the Australian Qualifications Framework level 10; and(b) changes their enrolment to a course at the Australian Qualifications Framework level 9.

Ratio Decidendi

Legal Principle Established

The evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).Consideration of the discretion to cancel the visa Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia The applicant told the Tribunal that she originally came to Australia for a holiday in 2009 and she travelled to Gold Coast. She loved the environment and decided to come to Melbourne on her second trip in 2017 in order to study and improve her English. She stated that her cousin and her cousin’s children lived in Box Hill in Victoria and she could stay with them. She confirmed she completed high school in Malaysia and her foster mother paid for her studies in Australia. The applicant stated she would like to remain in Australia to complete her studies. She claims that she would like to study a Bachelor of Nursing and continue to improve her English. The applicant intended to study a package of courses at Alice Spring College including a Diploma of Business to commence on 11 November 2019 and end by 3 January 2021, a Diploma of Business Administration to commence on 15 January 2021 and end by 14 January 2022 however the applicant ceased studying her Diploma on 1 April 2020 and did not pay her fees and as a result, on 5 May 2020 her Certificate of Enrolment (CoEs) for her Diploma of Business was cancelled. Further, her Certificate of enrolment for the Diploma of Business Administration was subsequently cancelled on 3 February 2021 when she failed to commence her study on 15 January 2021. The applicant was enrolled in an Advanced Diploma of Business 25 January 2021 – 14 January 2021 but this was cancelled due to non-commencement of studies. The applicant had not been enrolled in a registered course since 3 February 2021. Whilst the Tribunal acknowledges the applicant has stated that she would like to remain in Australia to complete her studies she has not provided a compelling reason. Her non-engagement in her studies for which her visa was granted, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control