Chemutai (Migration)

[2020] AATA 4497

Chemutai (Migration) [2020] AATA 4497 (12 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Anita Ashley Chemutai

CASE NUMBER:  1924557

HOME AFFAIRS REFERENCE(S):          BCC2019/2543247

MEMBER:Michael Biviano

DATE:12 August 2020

PLACE OF DECISION:  Melbourne

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 12 August 2020 at 11:55am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered Higher Education course ceased – withdrawal of family financial support – applicant changed to lower level course – applicant’s return to Kenya without qualifications – decision under review set aside

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 August 2019 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 (the Act).

2. The delegate cancelled the visa on the basis that she was not enrolled in a 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.

3. The applicant appeared before the Tribunal on 27 July 2020 to give evidence and present arguments

4. The applicant 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

6. 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?

7. 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)

   ·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: 8202(2)(b);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course for the period from 29 June 2018, until the cancellation of the visa on 28 August 2019.

9. The decision record of the delegate of the Department of Home Affairs on 28 August 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 27 June 2017 and the reasons for the cancellation of the visa (Decision Record).

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

11. The applicant is a 22-year-old Kenyan national. The Decision Record confirms that the applicant came to Australia on 28 July 2017 pursuant to a Student (Temporary) (Class TU) visa to undertake a Bachelor of Media and Communications at Latrobe University.

12. Prior to coming to Australia the applicant completed a Foundations Course in the United Kingdom in Media and Communications.

13. The applicant gave evidence that she undertook the first semester of her studies which she successfully completed. She completed 5 or 6 subjects in her first semester.

14. During the first half of 2018, the applicant undertook study in the second semester of her course. She did not sit the exams.

15. She claims that while studying in the second semester she had a falling out with her parents about her education. The falling out arose from the applicant studying the Bachelor of Media and Communications, and that if she returned to take up employment in the Media and Communications field in Kenya, she would be placed at risk as there had been issues with persons working in that industry in Kenya being been placed in danger.

16. The applicant wanted to complete the bachelor’s degree. Her parents wanted her to change course and take up and study qualifications in aviation and to become a pilot. The applicant’s uncle had been a pilot with Air Kenya for many years and her brother was studying aviation in Adelaide.

17. The applicant gave evidence that she and her parents had a stand off. The applicant’s parents withdrew their support and finance from the applicant’s studies. The applicant was reliant on her parents’ financial support to study. The effect of that stand off was that she lost her enrolment in the bachelor’s degree.

18. The applicant gave evidence that she lost her enrolment in the bachelor’s course on 28 June 2018.

19. The applicant claims that she became depressed about the issue of not being enrolled and her studies stopping. She claims that she spent much of her time in her room and withdrawn. She became concerned that her studies in Australia would not proceed and all her studies in the United Kingdom and Australia would be wasted.

20. She had discussions with her brother who was studying aviation in Adelaide, who encouraged her to study in Adelaide and study aviation law. He agreed to provide her with financial support.

21. On 1 August 2020, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of her visa.

22. The applicant sought an extension of time within which to respond which was refused.

23. The applicant gave evidence that after receiving the NOICC she moved from Melbourne to Adelaide at Bruce Hartwig Flying School. The applicant claims that she believed that she enrolled in the Diploma of Aviation after receiving the NOICC, most likely in August 2019. The course was to be undertaken for the period from 8 October 2019 to 14 December 2022. The updated CoE for the course numbered BA1C8B91 and dated 26 June 2020 confirmed those dates and confirms the cost of the course was $73,500.

24. The applicant conceded in evidence that she was not enrolled in a registered course of study for the period from 29 June 2018, until at least receiving the NOICC on 1 August 2019, being a period of more than 13 months. By reason of not being enrolled in a registered course of study, she did not meet condition 8202(2)(a) of her visa.

25. On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course of study for the period from 29 June 2018, until at least receiving the NOICC on 1 August 2019. Accordingly, the applicant has not complied with condition 8202(2)(a) of her visa. As this was a condition that was attached to her visa, the applicant therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

26. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel or to remain in Australia

27. The applicant gave evidence that she came to Australia to study and undertake the courses as discussed above.

28. As discussed above, the applicant studied for  two semesters and has not been enrolled in a registered course of study from 29 June 2018.

29. The Tribunal accepts that the applicant came to Australia for the purpose of studying in Australia.

30. Whilst the applicant intended to study a Bachelor of Media and Communications and she commenced those studies, she lost her enrolment due to a stand off with her parents about the course she was studying and they withdrew financial support, which lead to losing her enrolment in the bachelor’s degree.

31. As discussed above, she has since enrolled in a Diploma of Aviation and she gave evidence that she has been studying that course since October 2019 and paid more than $12,000 in tuition fees.

32. The applicant was not enrolled for a long period of time, of more than 13 months before the cancellation of her visa. The fact that she was not enrolled was due to lack of financial support due to a stand off with her parents about her course and partly due to being depressed that she was unable to study the course of her choice, provides an explanation as to why she could not study, notwithstanding she intended to study.

33. The Tribunal accepts that in the circumstances the gap in her studies did not reveal an intention not to study for a period of time. Rather she was prevented from undertaking those studies.

34. Since being enrolled in the Diploma of Aviation she has continued to undertake studies and the updated CoE provided to the Tribunal confirms that she has undertaken studies in the diploma since 8 October 2019.

35. The applicant intends to continue studying in Australia in the future and complete the Diploma of Aviation for the purpose of completing the diploma and becoming a commercial pilot with Air Kenya.

36. Having regard to the applicant’s evidence and her conduct during her stay in Australia, in that she has continued to study during the time she has been in Australia, the Tribunal accepts that the applicant has travelled to Australia for the purpose of studying and she intends to study in the future, and her gap in studies did reveal an intention not to study for a period of time.

37. For these reasons, the Tribunal gives these matters some weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

38. The applicant was not enrolled at the appropriate level course for the period from 29 June 2018 until the provision of the NOICC on 1 August 2019. Therefore, the applicant has not complied with condition 8202(2) for a long period of time. The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for non-enrolment or finds she was not responsible for the reason of non-enrolment.

39. As discussed above, the applicant’s non-compliance with the visa condition relates to the falling out with her family and their withdrawal of financial support because they did not want her to take up a role in the media in Kenya due to the degree of danger working in that industry.

40. The Decision Record and the applicant’s evidence do not reveal that she was in contravention of any other visa condition.

41. The applicant in evidence confirmed that she knew that she was in breach of her visa. Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study.

42. The Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that she would be in breach of her visa by not being enrolled in a course of study and accepts that those reasons were in part beyond her control.

43. However the Tribunal notes that the applicant will be in breach of her visa if she continues to study the diploma as the applicant obtained the visa for the purpose of studying the bachelor’s degree which is a course at level 7 of the Australian Qualifications Framework (AQF), whereas the applicant is studying a diploma, which is at level 5 of the AQF.

44. Pursuant to condition 8202(2)(b), the applicant must maintain enrolment in a registered course that once completed will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.  

45. The applicant gave evidence that if her visa were reinstated, she would apply for a new study visa, to rectify that matter. She gave evidence that there is Bachelor of Aviation course available, but that course provided less instruction to the student than the diploma course.

46. Having regard to these matters, the Tribunal gives these matters some weight towards the visa not being cancelled.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

47. The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.

48. The applicant gave evidence that if her visa was cancelled it would cause her and her family a substantial degree of hardship as:

    a.She would return to Kenya without any qualifications and she would have limited employment prospects;

    b.She wishes to work as a commercial airline pilot with Air Kenya, for which obtaining qualifications in Australia would provide her with greater opportunities and assist her in obtaining that role, for which there are only a few women employed in that role, whereas obtaining aviation qualifications in Kenya would provide her with limited opportunities;

    c.She will have to repay her parents the $12,000 they had invested in her education, with no prospects of repayment if she cannot complete her education and gain employment; and

    d.She will leave Australia with a part completed qualification which will be wasted.

49. The Tribunal accepts that the applicant has not completed any courses and she will return home to Kenya empty-handed if the visa is cancelled. Further, the Tribunal accepts that there will be some hardship caused to the applicant and her family if the visa is cancelled, in the cost of tuition fees that have been paid for the last two years and her prospects of employment in Kenya will be weaker without obtaining academic qualifications.

50. In any event, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

51. The Tribunal considers that the above matters give some marginal weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

52. 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.

53. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

54. Ultimately, the responsibility regarding enrolment rests with the student.  

55. The applicant knew and was aware that by not being enrolled in a registered course of study she would be in breach of condition 8202 and that her visa may be cancelled.

56. The primary responsibility of the applicant under the visa is to be enrolled and undertake a registered course at a level appropriate to her visa. The applicant was not enrolled in a registered course at an appropriate level for a period of more than 13 months, which is a long period of time to be in breach of the visa.

57. The Tribunal has considered the applicant’s explanations for why she was not enrolled in a registered course of study at a level appropriate to her visa for such a long period of time and therefore in breach of condition 8202(2). The Tribunal has accepted those circumstances were beyond her control, or circumstances that provided a reasonable explanation for not being enrolled at the appropriate level of course for such a long period of time. The Tribunal gives this matter some weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the Department

58. According to the Decision Record, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

59. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

60. If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of further visa.

61. Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next three years.

62. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.

63. The applicant gave evidence that if the visa remained cancelled she would return to Kenya and therefore there is no indication that she would become unlawful or be subject to detention.

64. Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

65. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled she would return to Kenya, and she did not give any reasons as to why she could not return to Kenya, and she has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

66. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

67. The Tribunal is not aware of any other relevant matters which will impact whether the visa ought  to be cancelled.

    Conclusion

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

    DECISION

69. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Michael Biviano
    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.