Wangmo (Migration) - [2023] AATA 1838

Wangmo (Migration) [2023] AATA 1838 (10 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Dechen Wangmo
Mr Sonam Norbu
Master Tashi Jurme
Master Khamsum Jigme Singye
Miss Jamjang Selden Dolma
CASE NUMBER:  2210498
HOME AFFAIRS REFERENCE(S):          BCC2022/1778554
MEMBER:Christine Kannis
DATE:10 March 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 10 March 2023 at 7:00am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – multiple health issues – maternity leave – multiple course cancellations – family bereavement – family members studying in Australia – poor academic progress – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 78, 116, 140, 348, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 July 2022 made by a delegate of the Minister for Home Affairs to cancel the first named 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 first named applicant (the applicant) failed to comply with a condition of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal on 13 February 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant and the applicant’s former employer, Ms Susan Abbott.
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.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is…

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.

Continue reading Wangmo (Migration)

Details

AGLC: Wangmo (Migration) [2023] AATA 1838
Case: [2023] AATA 1838
Decision Date: 10 March 2023

CaseChat Overview and Summary

This matter concerned an application to affirm the cancellation of a Student (Temporary) (Class TU) visa, subclass 500. The applicant, Ms. Wangmo, had her visa cancelled by the Department of Home Affairs on the grounds that she had breached condition 8202 of the Migration Regulations 1994 (Cth) by ceasing to be enrolled in a registered course. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had indeed breached this condition and, if so, whether to exercise its discretion to affirm the cancellation.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations. This condition mandates that a student visa holder must be enrolled in a full-time registered course and maintain enrolment in a course that leads to a qualification at the same or a higher level than the one for which the visa was granted. The Tribunal also considered the applicant's submissions regarding her reasons for non-enrolment and whether these circumstances warranted the exercise of discretion to set aside the cancellation.

The Tribunal found that the applicant had breached condition 8202(2)(a) as she was not enrolled in a full-time registered course from 9 March 2020. While acknowledging the applicant's stated reasons for her non-enrolment, including multiple health issues, pregnancy and recovery, family bereavement, and COVID-19 related travel restrictions, the Tribunal concluded that these circumstances did not outweigh the breach of the visa condition. The Tribunal recognised the significant impact of visa cancellation but, on balance, affirmed the decision to cancel the applicant's visa. The Tribunal noted it had no jurisdiction concerning other family members who may have held visas.

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.Did the applicant comply with Condition 8202? Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:·be enrolled in a full time registered course: 8202(2)(a)·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii). The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2] [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act. The information from PRISMS shows that the applicant was not enrolled in a registered course of study from 9 March 2020. The period of her non-enrolment is discussed below. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 9 March 2020 and the Tribunal finds that she breached condition8202(2)(a) of her visa. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa

Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.Christine KannisMemberATTACHMENTMigration 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

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below. On 7 June 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of her visa. Response to NOICC On 13 and 16 June 2022, the applicant responded to the NOICC and provided the following information: Despite her genuine interest in pursuing a marketing and communication course, she could not complete the courses in which she was enrolled. Since April 2019, she had multiple health issues such as recurrent allergy and moderate to severe abdominal pain. She made repeated visits to the emergency department and as an outpatient. She has a few prescriptions and records however she had to take over the counter painkillers at time. She enrolled for July 2019 course since her health improved however her pain and allergy recurred in the latter half of 2019. From early 2020, she was pregnant and due to her age and the gap since her last pregnancy, she had one of the worst health issues since she got pregnant. She had several episodes of nausea and vomiting along with abdominal pain and she made repeated visits to emergency and OPD departments. It was really difficult to attend the courses when she was pregnant. She delivered her baby on 9 December 2020 and was on maternity leave for 6 months. In addition, her 13 year old son who was with her in Perth was already enrolled in the college. Having to take care of her baby and her son was difficult although her husband was always there by her side. Her plan was to resume courses from July 2021 after her maternity leave. However she was shocked to receive difficult news from Bhutan that her maternal grandfather passed away in June 2021. It was difficult because he was like a father to her and personally took care of her since her childhood. To make matters worse, she could not travel back to her home country because of COVID-19. It was a really difficult time for her but she had no choice but to discontinue the enrolled courses. It was a very depressing weeks and months and she had to take advice and counselling from her husband, close relatives and friends. On 17 May 2022, her whole family had to stay home because they had COVID-19. She has a huge appreciation for the Home Affairs rules and regulations and is totally aware of it. Due to the unavoidable circumstances set out above she could not complete/continue her enrolled courses. She is really concerned not only about her visa cancellation but more so because her entire family is on a family visa. Her second youngest son is enrolled in college in Perth and her eldest son, who has just arrived from Bhutan, is looking forward to enrolling in college soon. Her husband also lives with her. Initially her genuine purpose of travelling to Australia was to support her husband in pursuing his career in business, management and leadership which he successfully completed. Since they are interested in pursuing a business career, she enrolled into this course with much interest and enthusiasm. Since it is very difficult for her to continue with her studies at this time, instead her husband has enrolled to study at Skills Australia Institute.