1501189 (Migration)

[2015] AATA 3418

1501189 (Migration) [2015] AATA 3418 (9 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rehema Sospeter Makwasa

CASE NUMBER:  1501189

DIBP REFERENCE(S):  BCC2014/2666857

MEMBER:Kate Millar

DATE:9 September 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 09 September 2015 at 3:54pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Ms Makwasa came to Australia to study a package of courses that would lead to a Bachelor of Counter Terrorism at Edith Cowan University.  After studying English for three months and failing to meet the required standard of English for her course, she says she was refused enrolment on the Bachelor of Bachelor of Counter Terrorism, Security and Intelligence and went to study a Certificate IV in Christian Ministry and Diploma of Christian Leadership at Victory Life International Bible Training Centre (Victory Life).

2. On 20 January 2015 a delegate of the Minister cancelled Ms Makwasa’s visa under s.116(1)(b) of the Migration Act 1958 (the Act)  because she found Ms Makwasa had failed to comply with a condition of her visa, being the condition that required her to continue to satisfy the criteria for the grant of the visa.  The delegate found that when Ms Makwasa enrolment in the Bachelor course was cancelled on 14 March 2013 she no longer met the criteria for the grant of the visa and, having considered matters raised by Departmental policy, the visa should be cancelled.  This is an application to review the decision to cancel Ms Makwasa’s Subclass 573 Higher Education Sector visa. 

3. The issue is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. 

4. Ms Makwasa appeared before the Tribunal on 9 September 2015 to give evidence and present arguments, and was represented in relation to the review by her registered migration agent.

5. 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

1. Under s.116 of the Act, the Minister may cancel a visa if satisfied that certain grounds specified in that provision are made out. These include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

Does the ground for cancellation exist?

1. A visa may be cancelled under s.116(1)(b) if the Minister or the tribunal is satisfied that the visa holder did not comply with a condition of his or her visa. In this instance condition 8516 attached to Ms Makwasa’s visa. As it applies to Ms Makwasa, this condition requires her to continue to be a person who would satisfy the primary criteria for the grant of the visa. This requires continuous compliance with the primary criteria for the visa, and does not allow for a break in compliance with the primary criteria for the grant of the visa.

2. The primary criteria for the grant of the visa include cl.573.231 of Schedule 2 of the Regulations. It says that, if the applicant is not an eligible higher degree student, the applicant has enrolled in or is the subject of a current offer of enrolment ion a principal course of study specified by the Minister made in r.1.40A of the Migration Regulations 1994, and in force at the time the application is made. An eligible higher degree student is a person who is enrolled in a principal course of study for a bachelor degree or a masters degree by coursework.

3. Ms Makwasa does not dispute that she no longer met the criteria for the grant of the visa when her enrolment in the Bachelor course was cancelled, although she does say she was not permitted to enrol rather than her enrolment was cancelled.  She says she is not currently enrolled in a principal course of study for a bachelor or masters degree.

4. It follows that from around March 2013 she has not met the requirements for the grant of the visa and that has been in breach of a condition of her visa. 

5. 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 proceeded to consider whether the power to cancel the visa should be exercised.

Consideration of discretion

1. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

2. Ms Makwasa says that she came to Australian in November 2012 and completed an English course.  She sat the International English Language Testing System test twice, but did not achieve the score required for enrolment into the Bachelor course.

3. As a result, and after consulting with family and friends, she decided to study at Victory Life.  She says her aim in doing so was to improve her English to the extent that she could again enrol in the Bachelor course.  She sought enrolment at Victory Life, but was told she could not enrol until she was released from Edith Cowan University.  She says Edith Cowan University would not issue a release letter as she was not enrolled with them.  Ms Makwasa said she sought advice from the Department who told her to take the email from Edith Cowan University refusing a release letter to Victory Life.  She was then able to enrol at Victory Life.

4. Ms Makwasa said she then applied for a subclass 572 visa on 29 July 2013 as the visa type appropriate to her studies.  She says her visa was refused on 17 July 2014 for failing to provide evidence of the correct level of health insurance, a medical, and evidence of funds of approximately 29,000AUD. 

5. Ms Makwasa said she had asked about the progress of this visa application but had not received a response from the Department.  She says she was first asked for the additional information in May 2014.  She says she paid for the additional health cover on 22 May 2014, and went to book a health examination, but was told she needed a referral letter from the Department.  She says she wrote to the Department seeking the referral letter on the same day.  She received the referral letter on 10 June 2014 and tried to book a health examination, but was told Medibank was no longer conducting health examinations and was referred to Bupa, the new provider of health examinations.  She says she advised the Department she was having difficulty booking the medical examination.

6. Ms Makwasa says she then tried to book a health examination with Bupa and was told they were still putting systems in place to conduct the health examinations as they were starting operations on 2 August 2014.  She says she was also told the existing bookings were full and she would be placed on a waiting list.  She says she was then ill for a week 16 until 19 June 2014 and could not follow up her application.  And supplied medical certificates for these dates.  While she was waiting for a health examination booking, her subclass 572 visa application was refused.

7. Ms Makwasa applied to this tribunal for a review of the decision to refuse her subclass 572 visa, and a hearing was held on 12 February 2015 at which she says she was asked to provide further information, which she did within the two week period allowed.

8. She did not hear any outcome form this hearing, and contacted the tribunal on 12 June 2015 to ask about the progress on her case.  This application was subsequently reallocated to another member, and a hearing is scheduled on 5 October 2015. 

9. The tribunal considers the highly unusual circumstances of this case weigh in favour of exercising the discretion not to cancel the visa to allow Ms Makwasa to test her eligibility for a subclass 572 visa.  The tribunal is supported in this view by the cessation date of the 573 visa being 15 March 2016, only approximately six months from the date of this decision.

10. In regard to other matters contemplated by the policy of the Department, Ms Makwasa say the purpose of her travel and stay in Australia is to obtain an education to better support herself and her family in Tanzania.  She said she wanted to study counter terrorism because of the situation in east Africa and the terrorism activities of Al Shabaab.  She was able to accurate name some of the subjects involved in studying the Bachelor of Counter Terrorism Security and Intelligence.  

11. On being asked why she pursued a pathway in bible studies rather than repeating her English language course or enrolling in another English language course, she said that the courses she had undertaken allowed her to better practise her English with native English speakers, and because the course was taught in English.  If she achieved the Advanced Diploma, in which she is enrolled, she would not have to sit the IELTS test to enrol in the Bachelor course.  She also said that studies in religion assist with understanding terrorism, and gave as an example a study of misunderstandings of the bible that are used to justify terrorist activities. 

12. Ms Maksawa said her aim is to complete the Bachelor course, and that she had sat another IELTS test in August 2015.  On being asked why she had not sat this test earlier, she said she was trying to improve her English before she sat the test.  She denied that she enrolled in the Bachelor course, which has lesser English language and financial tests to more readily be granted a visa.

13. Ms Makwasa said the reason for the breach of her visa conditions was that she did not pass the English language requirement to enrol in the Bachelor course.  In regard to the extent of the breach, Ms Makwasa has been in breach for over two years, a significant period of time.  The tribunal considers this somewhat mitigated by her attempts to obtain a subclass 572 visa. 

14. In regard to the degree of hardship caused by the cancellation of her visa, Ms Makwasa said that her uncle is funding her studies and he expects her to support her family on her return and to help her country.  She provide a list of expenditure which states she has expend over $100,000 to date in pursuing her education in Australia.  AS she also said she had been working as a cleaner, the tribunal finds her stated wages of $200 - $500 per week would help to meet those expenses. 

15. Ms Makwasa says she tried to keep in touch with the Department about changing her visa and asking about the progress of her application. 

16. Ms Makwasa’s submissions were that the considerations of detention or indefinite detention, a breach of any international obligations or an impact on a victim of family violence did not apply. 

17. Having considered the circumstances as a whole, and in particular the unusual circumstances around the change to the health examination provider and the need for a further tribunal hearing about the refusal of a subclass 572 visa, the tribunal concludes that the visa should not be cancelled.

DECISION

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Kate Millar
Member