1708786 (Migration)

[2019] AATA 3760

1708786 (Migration) [2019] AATA 3760 (8 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1708786

MEMBER:David McCulloch

DATE:8 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 08 March 2019 at 2:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – genuine student – enrolment in a registered course – scholarship for further enrolment – evidence of course progress – former partner’s access to their child – domestic violence – financial hardship – decision under review set aside        

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, 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

1. This is an application for review of a decision dated 12 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Kenya born on [date]. The visa that has been cancelled was granted on 12 August 2015 for a stay period until [August] 2017. That visa was subject to condition 8202.

3. On 27 March 2017 the applicant was issued with the 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 from 13 May 2016. The applicant provided no response to the NOICC. On 12 April 2017, 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.

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

5. The applicant appeared before the Tribunal on 29 October 2018 and 7 March 2019 to give evidence and present arguments. The Tribunal took oral evidence at both hearings from [Ms A], the applicant’s case manager at [a named agency].

6. 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

7. 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 (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?

8. 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 registered course, or in limited cases, a full-time course of study or training: 8202(2)
   • has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
   • has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that she has not been enrolled in a registered course of study since 13 May 2016. In the Tribunal hearing the applicant did not dispute that she has not been enrolled in a registered course since this date.

11. 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.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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.

14. 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.

15. In the first hearing the Tribunal discussed with the applicant her study history in Australia. She has been in Australia studying since the middle of 2012. The applicant confirmed in the hearing that she completed a Certificate II and III in Business, a Certificate IV in Small Business Management, a Diploma of Management and English for Academic Purposes. The applicant was thereafter scheduled to commence a Bachelor of Nursing in February 2015. In the hearing the applicant indicated she had not proceeded with this course as she was more interested in childhood learning and instead commenced a Diploma of Early Childhood Education and Care in April 2015. The applicant confirmed in the hearing that she notified cessation of this course on 25 September 2015 and switched providers to a Diploma of Early Childhood Education and Care at another institution.

16. The Tribunal asked the applicant to provide following the first hearing documents confirming that she completed the various courses that she claims to have completed. The applicant provided transcripts indicating her passing all units in the three courses studied by the applicant outlined above.

17. The applicant indicated in the first hearing that she ceased to be enrolled in the Diploma of Early Childhood Education and Care on 13 May 2016 due to the non-payment of fees as a result of a number of compounding factors. The applicant indicated that she lost her job. The applicant indicated that she sought financial assistance from her two [relatives] who live in Australia but that this was not provided. The applicant indicated that she was in a relationship with a person, [Mr A], an Australian citizen which affected the applicant negatively. The applicant had an on-again off-again relationship with this person who perpetrated domestic violence against the applicant. The applicant also indicated that her pregnancy to this person was an additional compounding difficulty in continuing with her studies.

18. The applicant indicated that the relationship with [Mr A] ended in November 2016. [Mr A] was charged with rape (not of the applicant) and detained on remand. He was eventually acquitted of the charges but was in custody on remand until approximately two months prior to the first hearing of the Tribunal.

19. The applicant gave birth to a daughter [in] September 2016. The applicant and her daughter have been housed since in emergency care. The applicant’s case manager relevant to her residential care, [Ms A], provided a written statement in advance of the first hearing. It indicated that the applicant and her daughter are homeless and have been staying in crisis accommodation for women and children. Their exit from this accommodation is being considered. It is not permanent. The applicant is on a low income although she receives a benefit for her daughter but receives no income for herself. It is indicated that the applicant has found herself in this situation due to domestic violence.

20. In the first hearing, the applicant indicated that since the father of her child has been recently released from remand he has had a degree of contact with the child. Provided to the Tribunal on the day of the first Tribunal hearing was a statement from [Mr A] indicating that he visits his daughter regularly and is hoping to find a bigger home to have his daughter visit on weekends. He indicates the importance of having the child around as she is growing up which would not be possible if the applicant leaves Australia. It is indicated that life in Australia is all that his daughter knows.

21. Also provided on the day of the first Tribunal hearing was a letter dated 26 October 2018 from a caseworker at [A named agency]. It indicates that [Mr A] has worked with the caseworker since commencement of his access to the program. The letter supports ongoing contact between [Mr A] and his daughter the absence of which would affect both [Mr A] and his daughter.

22. In the first hearing the Tribunal explored with the applicant whether she would be continuing to study in Australia. The Tribunal was erroneously proceeding on the basis that the student visa which had been cancelled was still valid. On that basis the Tribunal would tend to be inclined to exercise its discretion to cancel the visa unless the applicant had plans to enrol in a registered course. In fact, as became apparent to the Tribunal following the first hearing, the visa that has been cancelled expired [in] August 2017.

23. In any event, following the first hearing the applicant provided the Tribunal with a Confirmation of Enrolment in the Diploma of Early Childhood Education and Care which commenced on 14 January 2019. The applicant indicated in the hearing on 7 March 2019 that she was currently studying this course which had been funded from a scholarship provided by the organisation involved with providing her accommodation. The course is due to conclude in August 2020. The Tribunal considers that the fact that the applicant is currently enrolled in and studying in a registered course a discretionary factor in her favour given that her purpose in being in Australia has been to study. The Tribunal also considers in the applicant’s favour her solid study history in Australia prior to her ceasing to be enrolled.

24. In the second Tribunal hearing the applicant indicated that the issue she is currently having to juggle is her ability to pay for childcare to enable her both to study and to work. The Tribunal was satisfied that the applicant had a genuine desire to continue to study and that she would navigate appropriate arrangements for work and childcare.

25. In the first hearing the applicant indicated that compelling reasons for her to stay in Australia and hardship to her if the visa remains cancelled would be her inability to continue with her studies and detriment to both her child and the child’s father if they were separated by them having to return to Kenya. The applicant also indicated that family and friends in Kenya could take an adverse view of the applicant as a result of her lack of meaningful progress and the situation she has encountered in Australia. The applicant also emphasised that moving to Kenya would be mentally distressing for her daughter.

26. In discussions with the applicant in the first hearing as to whether she or her daughter face persecution or significant harm on return to Kenya, the applicant referred again to the mental distress that would face her daughter.

27. The Tribunal has sympathy for the situation facing the applicant. The Tribunal considers that there was a confluence of events: domestic violence, pregnancy and temporary lack of funds that caused the applicant’s course to be cancelled on 13 May 2016 for non-payment of fees which were extenuating circumstances beyond the applicant’s control. This factor is significantly favourable to the applicant in the Tribunal not exercising its discretion to cancel the visa.

28. The Tribunal was also sympathetic to the situation facing the applicant’s Australian citizen daughter in terms of her ongoing relationship with her father if her mother was forced to return to Kenya with her.[1] However, a student visa is designed to allow a person to study in Australia. It is not a de facto right of residency based on family relationships.

    [1] The Tribunal notes that the website of the Kenyan High Commission in Australia indicates that a child born to a Kenyan citizen overseas is themselves a citizen of Kenya: >

    Additionally in the applicant’s favour in terms of not exercising the discretion to cancel the visa is that the applicant is currently engaged in study of a registered course, a Diploma of Early Childhood Education and Care. The Tribunal is satisfied that the applicant is genuinely engaged in this study and seeking to manage work and childcare to facilitate ongoing study together with the support that she is receiving from others. Also in the applicant’s favour is her solid study history in Australia since 2012.

29. In summary, the fact of the Tribunal considering that there were some extenuating circumstances beyond her control for the breach, the applicant’s solid study history in Australia since 2012, and the fact of the applicant currently being enrolled in and studying a registered course, together with other discretionary factors, result in the Tribunal determining not to exercise its discretion to cancel the visa.

30. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

31. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    David McCulloch
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.