Wong (Migration)

Wong (Migration) [2023] AATA 3253 (16 August 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Mei Ling Patricia Wong
REPRESENTATIVE:  Mr Imran Ali (MARN: 0959879)
CASE NUMBER:  2210677
HOME AFFAIRS REFERENCE(S):          BCC2022/1775578
MEMBER:David McCulloch
DATE:16 August 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 August 2023 at 11:15am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – poor study history – mental health conditions – borderline personality disorder – bipolar disorder – capacity and ability to complete study – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
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 14 July 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 applicant is a national of Malaysia born on 25 September 1998. The visa that has been cancelled was granted on 6 December 2018 for a stay period until 15 March 2023. That visa was subject to condition 8202.
On 6 June 2022 the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa as she ceased to be enrolled in a registered course since 28 April 2021. The applicant provided a response to the NOICC on 9 June 2022 requesting an extension to provide documents. This extension was granted on 10 June 2022. The applicant provided a response to the NOICC on 21 June 2022 and again on 22 June 2022. On 14 July 2022, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa. The applicant seeks review of the delegate’s decision.
The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. 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 28 June 2023 at 12 pm to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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). 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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The delegate’s decision record on the Department file indicates that she has not been enrolled in a registered course of study between 28 April 2021 and 17 June 2022.
There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.
In the hearing, the applicant acknowledged that she had not been enrolled in a registered course between 28 April 2021 and 17 June 2022.
On 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).
As the applicant has failed to comply with the visa condition the ground of cancellation in
s 116(1)(b) is made out.
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 to exercise its discretion to cancel the visa.
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under

s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation; whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
On 21 June 2022 the applicant provided the following written statement as part of their response to the NOICC (headings omitted, not corrected for spelling or grammar):
I hope this letter finds you well. My name is WONG Mei Ling Patricia and I am an
international student from Kuala Lumpur, Malaysia. I am currently residing in Melbourne ([Address 1]). I was initially enrolled in RMIT University for a Bachelor’s
Degree of Business (Marketing).

I moved to Melbourne in February 2019 in hopes to resume my studies in Australia from a
prior 17 months where I was formally diagnosed and treated by a psychiatrist in Kuala
Lumpur for borderline personality disorder.

In July 2019, I noticed my mental health declining again so I decided to take a leave of
absence for the semester starting September 2019.

During this leave of absence, I felt many ups and downs with my mental health. On one
hand, I am working on improving my mental health but quickly realising it was difficult being
apart from my family. The loneliness was the most difficult aspect at that time as my parents
and I are a closely knit family. In Malaysia, it would be very rare if I was not spending time
with my mother. With time and therapy, I understand now that I developed a codependent
relationship with my mother and made it difficult for me to adapt to life in a separate country
from her. I was not mentally ready to let her go.

As the year preceded, I felt myself getting better by the Christmas holidays. I felt ready to
resume my studies, feeling more hopeful and motivated to focus on my academics in
February 2020.

Around the time of resuming my degree in 2020, the COVID-19 pandemic had hit and with
the first of many lockdowns, our classes quickly transitioned to an online delivery method,
along with the rest of the nation. I found this transition particularly difficult and it was evident
that it affected my life greatly and I struggled with my mental health. This was unfortunately
affecting my studies yet again and I felt such a big setback in my recovery. I was devastated.
I had not been apart from my family for more than 6-month increments prior to the pandemic.
I never felt so low or lost in my life. These stresses caused difficulties in academic aspects
like attendance and participation in class, coping with the content and late submissions.
Melbourne is the most locked down city in the world with respect to the COVID-19 pandemic.
By this time, I felt as if I had lost count of what number lockdown we were in and it was
evident my mental health plummeted to its all time lowest. The consistent minimal social
interaction did not help with my situation and my panic attacks and crisis episodes had
gotten worse by the week. Some of these panic attacks lasted over 6 hours- some of which
had me ending up hospitalised in the Emergency Room due to the intensity of each episode.

During this time, I was hospitalised multiple times in 2020/2021 all due to mental health
episodes induced by the pandemic and academic stress. The first hospitalised episode
occurred during the second lockdown where I was admitted to The Royal Melbourne
Hospital (29/08/2020-30/08/2020). Many occurred soon after, the hospitalisations did not get
easier. Thankfully, I was not hospitalised for all episodes- I managed to pull through many
through the help of close friends, calling a family member, or calling hotlines like Lifeline.
Although I felt well looked after during my visits at the hospitals, fearful and traumatic
emotions arise when ruminating over my hospitalisations. The following are the dates of
each hospitalisation in Melbourne. I have received this information directly from my GP:

The Royal Melbourne Hospital
·29/08/20 - 30/08/20
·22/06/2020 - 23/06/2020
·27/04/20 - 28/04/2020

Alfred Hospital

·Admissions are from mid to end 2020. Admission dates TBC
·Unfortunately, due to trauma I cannot recollect which specific dates on my own but I am pending the admission dates from my GP and will update the Department of Home Affairs with the relevant documents as soon as I receive them.

St Vincent’s Hospital
·08/11/2021
·13/11/2021

I began group Dialectical Behavioural Therapy (DBT) at The Melbourne Clinic from 10
September 2020 to 25 March 2021 completing 19 weekly sessions in total. I plan to be
retake the program again this November with The Melbourne Clinic for the following
modules:
·Emotion Regulation
·Distress Tolerance.

My relationship with my mother is very close. She was my primary caretaker as a child- my
father travelled a lot for work. As previously mentioned, we were known as the “motherdaughter duo” and I was always there for her for all her previous surgeries and illnesses when I was a child (ie. brain tumour surgery, two (2) knee surgeries).

She was scheduled in for a 9-hour hand operation on 17 September 2020, from 3pm to
midnight 18 September 2020. This surgery caused me many worrying sleepless nights, with
building frustrations that I could not fly home to be with my mother to support her because of
the border closures and sixth lockdown. The risk of her losing mobility in her dominant hand
brewed debilitating anxiety within myself.

On 30 September 2020, 5 days after my birthday and shy of two weeks after my mothers
surgery, I received a heart-shattering phone call from my father. He had informed me that
my grandmother in Singapore of 95 years had passed away. The following link is the digital
obituary for my grandmother:
being able to support my mother through her surgery in Kuala Lumpur was difficult
enough; knowing neither my parents or I were able to fly to Singapore for the funeral due to
the pandemic border closures. I felt extremely disconnected from the Zoom funeral, feeling
more numb and disassociated than ever when my cousin panned the phone camera toward
the casket for us to say our last words to our late grandmother. This digital funeral affected
my mother and I in more ways than I anticipated. My mothers grief caused her to distance herself, making me feel isolated. But I did not want to cross boundaries with my mother and I
allowed her to grief in her own ways. This was the first time navigating grief as an adult and
due to circumstances, I developed auditory and visual hallucinations and delusions as a
coping mechanism for my silent grief. I felt unable to communicate my grief effectively but
thankfully, group therapy had helped me navigate through the pain.

I started to see a GP regularly and was referred to a psychiatrist. I began seeing Dr Sareen
at The Melbourne Psychiatry on 30 October 2021 for medication. I have scheduled monthly
appointments with him for the rest of 2022.

I strongly believe that the health care in Australia can assist me in my recovery and that
Malaysia will not be a suitable, conducive environment for my healing process. I have
attempted treatment and was not as effective or comfortable as I hoped.

Over this break, my recovery allowed me to reflect on what I would like to do. I felt a
personal draw to my first passion, Art & Design. I was previously a (primarily) art stream high
school student, following with a Foundation Certificate from UNSW Global in Design.

Through time of struggling with my mental health, I found an unhealthy habit of going out of
my way to please people but neglecting myself. Unfortunately, I was lost and unsure, which
caused me to make the wrong choice with my last course. It did not bring me happiness nor
spark passion, and brought on dread, anxiety and guilt instead.

However, I am confident to say that art is a long-time passion of mine and would like to
venture into opening a gallery of my own curating local and hopefully expanding into
international art and venues. I would like to go home to Malaysia in the future and introduce
new concepts of art, challenging what I perceive as conservative views on certain topics and
break stigmas on mental health through the medium of art and it’s vast creative industry. As I
become more self-aware, I am certain that I envision myself in the art industry one way or
another.

On 17 June 2022 I received my Confirmation of Enrolment(s) from Latrobe College of Art &
Design in a Diploma of Visual Art, and proceeding with another course; Advanced Diploma
of Visual Art. The total duration of both courses add up to 2 years. I have been enrolled and
scheduled to begin in the most recent June intake and will commence classes on Monday 20
June 2022. (Note: The college is aware of my visa situation.)

Furthermore, I have enrolled myself in a separate private 6-week ceramic class with
Terrapotter Studios in South Melbourne. This course begins on 23 June 2022 and will run
every Thursday for 6 weeks following the date.

I am writing this statement in hopes that my visa and studies in Melbourne, Victoria, may not
be canceled and my case to be considered would be greatly appreciated. I truly believe that
staying in Australia would allow me to follow my passions and enrich my career. The
excellent healthcare in Australia is far better from what I could receive in my home country
and would like to have the opportunity to continue my recovery here. In summary, I hope that
you would please consider my return to my studies, and that I can stay on track with my current health treatment plan in place with my GP, psychiatrist, group therapy and therapist.
The applicant provided the following documents to the Department, as summarised in the delegate’s decision:
·A written submission from the visa holder
·A CoE for a Diploma of Visual Arts issued by Latrobe College of Art & Design to the visa holder on 17 June 2022
·A CoE for an Advanced Diploma of Visual Arts issued by Latrobe College of Art & Design to the visa holder on 17 June 2022
·Confirmation of Timetable from Latrobe College of Art & Design dated 15 June 2022
·Participation letter from The Melbourne Clinic dated 08 June 2022
·Letter dated 07 June 2022 from CBD Doctors Melbourne, written in respect of the visa holder
·The visa holder’s GP Mental Health Treatment Plan from CBD Doctors Melbourne, dated 24 January 2022
·Screenshot of an email sent to the visa holder from CBD Doctors Melbourne
·Screenshot of phone conversation with the visa holder’s mother
·Screenshot of appointments scheduled for Terrapotter Studios.
The Tribunal wrote to the applicant requesting that she provide evidence of all courses that she had successfully completed in Australia since 2015. The applicant was also requested to provide transcripts from relevant study institutions indicating the units that she had studied and her progression with those units in terms of having passed the units or otherwise.
In response, the applicant provided a number of documents on 13 April 2023. In relation to the Tribunal’s query the applicant provided evidence of completing on 27 May 2016 Foundation Studies at the University of New South Wales and passing five out of five units study in this course This was a nine-month course. No other evidence was provided at this time in terms of transcripts showing progression in terms of units studied in other registered courses undertaken.
Additionally provided was evidence of the applicant’s studies in Malaysia. Provided are relevant educational documents such as enrolments in courses in Australia and applications for courses. Additionally provided are various medical reports indicating treatment in Australia for mental health issues.
Later the applicant provided to the Tribunal a written statement including an attachment of the transcript for the Bachelor of Business (Marketing) (Applied) indicating units in 2019 and 2020. It indicates the applicant withdrawing from one course and failing three courses in 2019. It indicates the applicant withdrawing from all four courses studied in 2020.
The applicant’s written statement refers to and provides evidence of work undertaken in Australia. Work was undertaken to give the applicant a sense of routine and to help her mental health issues. It was a grounding tool in the time she had difficulty studying.
The Tribunal details evidence given by the applicant in hearing.
After foundation studies which the applicant completed, she studied a Bachelor of Fine Arts commencing on 25 July 2016. In the hearing the applicant indicated that she had difficulties coping with this course because of undiagnosed mental health issues. These eventually caused the applicant to withdraw from the course on 28 March 2017.
In the hearing the applicant indicated that she struggled with this course but could not remember whether she had passed the units. A transcript of this course was provided following the hearing which indicated that in the Bachelor of Fine Arts (Honours) she failed three out of four units and received an ‘absent fail’ in one.
Under pressure from her family, she then enrolled in a Bachelor of Media in Public Relations and Advertising which commenced on 24 July 2017. The applicant indicates that she struggled with this course, again because of mental health difficulties which were undiagnosed, and withdrew from the course on 10 October 2017.

The applicant then returned to Malaysia where she sought mental health treatment however initially there were misdiagnoses of her conditions. It was noted at hearing by the representative that on 23 October 2017 the applicant voluntarily sought the cancellation of the first student visa which is indicative of her integrity in terms of dealing with the Department in relation to her circumstances and issues relevant to the visa.
The applicant remained in Malaysia until February 2019. As indicated, the current visa was granted on 6 December 2018. Government records then indicate that the applicant commenced a Bachelor of Business (Marketing) (Applied) on 4 March 2019. The applicant indicated that she struggled with this course because of ongoing mental health issues and before the exams sought a deferral based on her mental health issues. Records indicate that this was granted on 24 September 2019. The applicant then recommenced this course on

1 January 2020. She continued to struggle because of her mental health issues eventually ceasing this course on 24 April 2021.
Transcripts provided by the applicant of this course indicate that in 2019 she failed three units and withdrew from one unit. In 2020 she withdrew from all four units. There is no reference to any units having been undertaken in 2021.
The applicant indicated that she withdrew from the course due to a combination of her mental health issues, losing her grandmother in Malaysia and the onset of hallucinations.
The applicant indicated that after the withdrawal she took steps to enrol in a registered culinary course but ultimately did not complete the enrolment because of the mental health issues she was facing.
Government records indicate that on 17 June 2022 the applicant enrolled in a Diploma of Visual Arts. There was a subsequent enrolment in an Advanced Diploma of Visual Arts due to commence on 5 June 2023.
The Tribunal put to the applicant in the hearing that she had previously deferred her Bachelor of Business due to mental health issues indicating that she clearly knew of the option to defer. The Tribunal questioned the applicant as to why she withdrew from the business course rather than seeking a deferral based on her mental health issues or enrolling in another course and seeking a deferral from that course. In response, the applicant indicated that she was bordering on a vegetative state given her mental health issues and could not think clearly enough to do this.
The Tribunal explored with the applicant her work history in Australia. The applicant indicated that she gained occasional work as a waitress in June 2021 which became more regular in October or November 2021. She quit in October 2021 as she was harassed at work and bullied. The applicant undertook different waitressing work for a reasonably short period in March 2022.
The Tribunal put to the applicant in the hearing that the claims to be in an almost vegetative state causing her not to be able to regularise her visa status, were inconsistent with her nevertheless having the ability to work during this period. In response, the applicant indicated that her only stability was at work and she maintained her fragile condition outside of work.
The Tribunal explored with the applicant her interest in pursuing visual art studies. The applicant indicated that her interest evolved from early 2022. The Tribunal put to the applicant that the fact that she enrolled in the Diploma of Visual Arts on 17 June 2022, not long after she had received the NOICC, could undermine that the enrolment was pre-intentioned of her own volition, rather than being a product of receiving the NOICC. The applicant indicated that she could understand why this view might be taken but maintained that she had an evolving desire to study visual arts.
The Tribunal noted to the applicant that the enrolment in the diploma course did ensure compliance with condition 8202 because that also requires that the applicant enrolled in a course of the same level as originally studied, namely a bachelor degree. In response, the applicant indicated that she was not aware of this requirement.
The Tribunal noted to the applicant in the hearing that from her original studies in Australia from September 2015 the only course she had successfully completed was the nine-month Standard Foundation Program in 2015 and 2016. On the evidence before the Tribunal she had not passed any unit since in her remaining years in Australia, albeit taking into account a return to Malaysia for approximately a year and a half.
The Tribunal put to the applicant that this very poor study history could result in the Tribunal forming a view, even if it accepted extenuating circumstances resulting from her mental health issues, that she has the capability to successfully undertake the visual arts courses.
The applicant maintained that in the recent past there has been a breakthrough in her treatment meaning that her conditions are much improved and that she now has the capability to successfully progress with the visual arts courses.
The applicant indicated that she is under the regular care of a psychiatrist and psychologist, and her GP. The applicant indicated that she is going to be progressing with a number of groups, including engaging in dialectic behavioural therapy.
The Tribunal gave the applicant the option after the hearing to provide an opinion from treating doctors as to the progress of her conditions expressing the view as to her ability to cope with intended study. The applicant undertook to seek to provide such a report.
In response, provided by the applicant was a letter from Dr Hugh Leslie of CBD Doctors Melbourne dated 20 July 2023. The letter indicates that the writer is the specialist general practitioner for the applicant who has been known by the practice since August 2021 and personally looked after by the writer since January 2022. It indicates that previously the applicant had been diagnosed with borderline personality disorder in 2016 and had temporarily had a diagnosis of bipolar disorder between 2016 and 2018. Reference is made to multiple hospital visits by the applicant. At this time, the applicant was acutely unwell and unable to study, however, working in hospitality gave her some relief and stability at this time. Mental health service workers at this time thought that she had complex PTSD.
In January 2022 she was referred by a mental health plan to a psychologist and started on antidepressant and antianxiety medication. The applicant responded well to psychological treatment and medication and her mental health started to stabilise.
While during 2021 the level of mental distress by the applicant was significant, effective treatment since has stabilised the applicant’s mood and situation significantly. By June 2022 she was sleeping better and felt much less anxious, which made her feel capable of getting back to studies and being able to enjoy them.
In November 2022 the applicant was diagnosed with attention deficit hyperactivity disorder and started on medication for that from her psychiatrist. This further helped her mood and ability to study.
The writer provides the opinion that the applicant is now stable and resilient from a mental health perspective and if allowed to continue her studies, is likely to perform well.
The Tribunal accepts that the evidence discloses not insignificant mental health issues faced by the applicant during a significant part of her time in Australia. The Tribunal has concerns, however, as to there being extenuating circumstances beyond the applicant’s control in allowing herself to not be enrolled in a registered course given that she had previously successfully sought a deferral of the course based on mental health issues. The applicant claims that the severity of her mental health issues caused her not to have the capacity to seek a deferral or make other arrangements to regularise her visa status. However, the applicant was working during this period which creates some doubts in the Tribunal’s mind as to lack of capacity.
However, on balance the Tribunal is inclined to accept that there was an exacerbation of the applicant’s conditions at the time that she withdrew from the Bachelor of Business in April 2021 explaining to some degree why she might not take the obvious step of seeking a deferral or enrol in another course. The Tribunal does not discount that her ability to undertake some waitressing work might still have rendered the applicant incapable of making informed decisions in terms of regularising her visa status.
Adverse to the applicant is her very poor study history in Australia apart from completing her initial Standard Foundation Program. On the information before the Tribunal at the time of the hearing, it had very significant doubts as to the applicant’s capacity to successfully undertake the Diploma of Visual Arts. This was indicated in the hearing as the applicant’s desired initial study in Australia then progressing to an Advanced Diploma of Visual Arts. The applicant indicated that she then had a desire to return to Malaysia, significantly because of a desire to be with her parents.
In the hearing, the applicant stridently maintained that her mental health conditions have very significantly improved. The Tribunal was impressed with the articulateness of the applicant and her stable and confident demeanour.
Significantly in support of the applicant’s contentions is the report from the doctor provided after the hearing that the applicant’s conditions have stabilised and the opinion that she is likely to be able to study and perform well.
Taking into account all of this information, the Tribunal is satisfied that the applicant has the ability to undertake the registered visual arts courses.
On balance, taking into account what the Tribunal accepts as her considerable mental health issues over time the Tribunal accepts that there are at least some extenuating circumstances beyond the applicant’s control explaining the failure to be enrolled in a registered course for 14 months. This assessment is made notwithstanding that the applicant previously sought a deferral on mental health grounds and that she undertook some work during this period. These factors do not undermine in the Tribunal’s view that there were remaining significant mental health issues resulting in the applicant not being in a position to study or maintain enrolment for this period.
If the visa subject cancellation remains cancelled the applicant will be restricted in her ability to apply for another student visa to continue her study in Australia. The terms of the cancelled visa has come to an end and thus the applicant would need to apply for a new student visa to continue her design studies.
The key hardship claimed by the applicant if the visa remains cancelled is her inability to continue the course of visual arts that she wishes to study. The Tribunal accepts hardship in this respect.
It has also been submitted that a hardship to be considered is the fact that the applicant has been receiving significant mental health treatment in Australia and there would be an interruption to this treatment and potentially inferior treatment in Malaysia. The Tribunal accepts some degree of hardships in these respects, although noting that a student visa is not a de facto means to seek medical treatment alone.
The Tribunal balances discretionary factors. In favour of not exercising its discretion to cancel a visa is the Tribunal’s view that the significant mental health issues suffered by the applicant are extenuating circumstances beyond her control explaining, at least to some degree, the failure to be enrolled in a registered course for 14 months. In the applicant’s favour is the fact that there is medical evidence that her mental health conditions have stabilised and that she has the capacity and ability to study in Australia in the courses that she wishes. The applicant will have to apply for a student visa in the normal manner in order to undertake further study in Australia.
The Tribunal accepts there will be a degree of hardship to the applicant if she is not able to progress with desired studies in Australia. The Tribunal also accepts hardship in terms of a discontinuity in terms of care for her significant mental health issues in Australia.
Adverse to the applicant is the reason for the long 14 month period of the breach together with the fact that she had the ability to work during this time as undermining potentially that she did not have the ability to regularise her visa status. However, as indicated the Tribunal is persuaded notwithstanding the ability to work there remained challenges for the applicant in making necessary steps to maintain enrolment and seek deferrals based on ongoing mental health conditions.
Adverse to the applicant is some disquiet in the Tribunal’s mind given her poor study history in Australia and extensive mental health conditions of continuing inability in Australia to cope with study. However, this is overcome by the statement provided after hearing from the applicant’s doctor.
Balancing discretionary factors, the Tribunal determines not to exercise its discretion to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
David McCulloch
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(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.

[2023] AATA 3253

16 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies