Chepkarat (Migration)

[2020] AATA 519

Chepkarat (Migration) [2020] AATA 519 (11 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mable Khakasa Chepkarat

CASE NUMBER:  1805348

HOME AFFAIRS REFERENCE(S):          BCC2017/4354334

MEMBER:Rachel Westaway (Presiding)

Noelle Hossen

DATE:11 February 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 573 Higher Education Sector visa.

Statement made on 11 February 2020 at 12:33pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – financial hardship – letter of financial support provided – attempt to pay fees in instalments – used money to pay grandmother’s medical costs – genuine student – second chance – decision under review set aside

LEGISLATION

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with paragraph 8202(2)(a) of condition 8202 by failing to maintain enrolment 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 21 March 2019 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.

7. On 23 January 2018 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) regarding her student visa. The applicant responded to the notice on 29 January 2018, 30 January 2018, 31 January 2018 and 19 February 2018. Her response may be summarised as follows:

   a)     The applicant claimed that the circumstances of the breach were unavoidable. She claims that she could not complete her studies at Edith Cowan University due to financial hardship. She claims that due to the political situation in Kenya her mother lost her job and this was extremely difficult for her family.

   b)     The applicant claimed that her mother’s job was re-instated and she now has the finances necessary to complete her studies.

   c)     The applicant claimed that she has no future in Kenya and she believes her destiny is in Australia. She states that she accepts responsibility for breaching her visa conditions and that it will never happen again. She states that she is a good citizen, it is her intention to complete her studies, and she will be a productive member of society. She requests mercy and a chance to pursue her studies.

   d)     She claimed that she had been accepted to study community services at TAFE International Western Australia and that she is in the process of organising payment of the first semester fees.

   ·She provided a Letter of Offer or Enrolment made by TAFE International Western Australia and advised that she is awaiting the provision of a COE (certificate of enrolment). The letter of offer stated that the applicant had been offered enrolment in a Certificate 4 of Youth Work, commencing 16 July 2018 and finishing 7 December 2018, and a Diploma of Community Services, commencing 4 February 2019 and finishing 20 December 2019.

   e)       She claimed that on 19 February 2018 she had enrolled in university and would be resuming her studies in the following week.

8. Following the decision to cancel her visa, on 21 February 2018 the applicant sent two emails to the Department.  She claimed that she had been accepted back into Edith Cowan University to study and that her dream to be a nurse had been crushed and that she feels sad that she was never given an opportunity to redeem herself. She claimed that she had only experienced hardship at a certain time and she had tried to explain the situation.

9. Following the hearing, on 1 April 2019, the applicant provided the Tribunal with an emailed submission which contained the following

   ·A letter of financial support from Gladys Chepkarat dated 24 March 2019

   ·2x Certificates of Lease dated 19 April 2013 and 28 January 2009

   ·27x Title Deeds

   ·A summary of Account from Standard Chartered showing the applicant’s mother has a Bonds Portfolio valued at US$92,099.80.

   Did the applicant comply with Condition 8202?

10. 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).

11. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. According to the applicant’s decision record, which the applicant provided to the Tribunal, the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 19 May 2017. This is a period of 8 months until which time her visa was cancelled.

12. The applicant confirmed with the Tribunal that she was not enrolled in a registered course of study.

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

    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 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, whether the visa holder has a compelling need to travel to or remain in Australia

14. The applicant is 31 years of age. She has no children or partner. She came to Australia alone. She was born in Kenya and has family in Australia. Her sister arrived in January 2018 and she commenced a Bachelor of Design and is now studying Software Engineering.

15. The applicant was enrolled to study for a Bachelor of Nursing.

16. In Kenya the applicant studied for a Bachelor of Social Sciences. Following this she was employed by the Kenyan electoral board. She worked there for 6 months. Prior to this she worked in an Orphanage associated with Thomas Berndardos for 9 months and also undertook voluntary work with Women empowerment and street kids.

17. She lived in Kenya by herself. She chose Australia because she saw Australia on TV and she also had a family friend that told her there were good nursing opportunities in Australia

18. The applicant was asked why she elected to study nursing and she stated it was because she was a carer to her Grandparents when she was younger she wanted to become a nurse and make a difference. She stated that she wants to Finish her degree and help people.

19. The applicant said that there is not much for her to go back to in Kenya. She is a woman with no degree and it would be hard to survive.  She explained that she would hate to have wasted this opportunity and her only option might be to become a housewife.  

20. The Tribunal gives some weight to the applicant’s explanation as to why she elected to study the course she did. She spoke with conviction and clarity and remorse. The Tribunal is mindful that the applicant was not enrolled in a registered course of study for 8 months which is significant and as such gives only some weight to this factor in favour of not cancelling the visa.  

    the extent of compliance with visa conditions

21. The applicant arrived in Australia in June 2016. She enrolled in a Diploma in Health Studies through a pathway program to Edith Cowan University. She was graded at ‘competence level’ and completed the course.

22. She then completed the first semester of the Bachelor of Nursing and passed all subjected in which she was enrolled. She claims not to have breached any other conditions of her visa.

23. There is nothing before the Tribunal to suggest the applicant has breached any further conditions. The Tribunal notes that the applicant did enrol in a registered course on arrival into Australia and completed a Diploma and the first semester of her degree. The Tribunal accepts that she presented as a committed student and passed her subjects. Given the applicant had been adhering to the conditions on her visa and demonstrated progression in her studies prior to the period of non-enrolment, the Tribunal gives some weight in favour of the applicant and not cancelling the visa.

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

24. The applicant was asked what she would do if the visa remained cancelled and she accepted that she would have to return to Kenya and she confirmed that she would have the ability to study nursing there. She explained that she would be extremely disappointed but she could live with her mother and stepfather.  She said that she would need to start her course from the beginning and it could take her 6 years.

25. The opportunity and the cost associated with the studies she has previously undertaken would be lost and she stated that her mother is now able to pay the fees. She said initially she owed $66,000 but the amount she will need to have is roughly $40,000 and she has 1 ½ years remaining to complete the course. The applicant was asked to provide evidence of access to funds by her mother and to provide these to the Tribunal after the hearing which she committed to do. She provided a letter of financial support from Gladys Chepkarat dated 24 March 2019, the applicant’s mother, 2x Certificates of Lease dated 19 April 2013 and 28 January 2009, 27x Title Deeds and a summary of Account from Standard Chartered showing the applicant’s mother has a bonds portfolio valued at US$92,099.80 dated 28 February 2019 as evidence of her financial situation and ability to pay.

26. The Tribunal accepts that the cancellation of a visa is disappointing for family members as well as the visa applicant. The Tribunal acknowledges the financial investment families make for international students and then to return without an Australian qualification can be very upsetting. The Tribunal accepts that a cancellation of a student visa would bring a degree of hardship to an applicant. The applicant has not outlined anything so severe that it would satisfy the Tribunal that the visa should not be cancelled for any individual reason. There is generally a consequence to such a significant breach of a condition.  The Tribunal however gives the hardship the applicant may feel a little weight in favour of not cancelling the visa given the applicant’s demonstrated commitment and advancement in her studies prior to the cancellation of her COE and the evidence on hand to indicate the applicant’s mother is able to now pay her fees.     

    circumstances in which ground of cancellation arose.

27. The applicant explained that she was unable to remain enrolled in a registered course due to financial constraints and could not pay her university fees. She had an encumbrance of $8,000 so the university said they would not let her undertake exams. She explained that she had difficulty paying the encumbrance in addition to the joining fees for the next semester. She explained that she was communicating with her parents constantly and pleading with them for financial assistance.

28. She explained that she did approach Edith Cowan University and said could afford to pay half but the university told her they required the full amount and consequently they cancelled her certificate of enrolment.

29. The Tribunal asked her how she demonstrated her financial situation when she initially applied for the student visa. She explained that she had access to 6 million Kenyan shillings and the exchange rate to the Australian dollar was at 70. She said that everything was ok in the first semester, but her grandmother became unwell after fracturing her hip and eventually passed away. The cost of her initial case was significant and they had to use the funds to pay for this.

30. The applicant explained that she previously lived with her grandmother because she was a child of a previous relationship and whilst her mother supported her, her stepfather does not because he favours his biological children. She confirmed that her brother in Canada continued to have his fees paid and she also has a sister in Kenya who is financially supported by her mother and stepfather. She explained her mother could not pay for everything and everyone at that point in time and she suffered the consequences of this. 

31. The Tribunal asked the applicant why she was put in a position where she could not afford her fees and she said she was the oldest child in her family and she was studying aged care and nursing. She was not a priority. She explained that her step father is self-employed and he originally had 20 trucks but now only has about 5 as the business was not performing well. Her mother works in a government department as a Senior Procurement Officer. She explained that many people in Kenya faced financial issues and lost their jobs during the economic down turn. She explained that her mother moved to the country to reduce costs but returned later. The applicant’s step father now works inTourism and her brother is also driving for Uber. The applicant’s family own property in Nairobi and farm in the country. The Tribunal asked her why her mother did not attempt to sell property to cover the education costs and she said that she was told that she could not sell quickly at that time.

32. The Tribunal put to the applicant that she had a choice to return home rather than breach such a significant condition. She said she did not want to return because she was scared to go home and was living in hope to stay and pay the fees gradually. Following the Tribunal’s hearing with the applicant, the applicant sent the Tribunal and letter from her mother with evidence of her assets and of particular interest, a financial statement for a bonds portfolio valued at US$92,099.80 dated 28 February 2019 indicating her access to funds to support the applicant and confirming that she experienced problems in the past but this has been rectified.

33. The Tribunal accepts that the applicant tried numerous avenues to pay off her fees by approaching the university and also offering to pay half and then some in instalments. The Tribunal notes the new evidence supplied by the applicant from her mother indicating access to fees. The Tribunal also accepts that the applicant presented at hearing as committed to her studies and desperate to continue. She provided evidence of new letters of offer for the same course.

34. Notwithstanding the fact that the applicant had the ability to return to Kenya as soon as she was aware her COE was cancelled, she did persuade the Tribunal of her ongoing attempts to try and obtain money from family and arrange for a payment system with the university to pay her fees. There is nothing before the Tribunal to indicate that the applicant used the funds originally meant for her studies in any manner which was counter intuitive to her studies, but rather a family medical emergency and an economic down turn contributed to the issue. The Tribunal gives these circumstances some weight in favour of the applicant and not cancelling the visa.

    past and present behaviour of the visa holder towards the department

35. There is nothing before the Tribunal to indicate that the applicant has been anything other than cooperative and the Tribunal gives this some weight in favour of the applicant and not cancelling the visa.

    whether there would be consequential cancellations under s.140

36. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    whether there are mandatory legal consequences,

37. Should the visa be cancelled, the applicant is likely to be subject to a bar which excludes her from applying for a visa for three years. This may also impact on her ability to apply for visas in other countries. It is unlikely that she would be detained; however this is subject to ensuring her immigration status is lawful and that she demonstrates a willingness and commitment to returning to Kenya. The applicant has not unidentified any reason which would prevent her from returning to Kenya.

38. Given the applicant’s demonstrated attempts to pay her fees in instalments and provide evidence from her family of their renewed financial situation as well as what appears to be her genuine commitment and interest in nursing, the outlined legal consequences she would face if the visa remains cancelled are quite restrictive. The Tribunal places some weight on this in favour of not cancelling the visa.

    The Tribunal accepts that the applicant was a genuine student committed to her studies and due to medical costs associated with her grandmother and a down turn in the Kenyan economy, she was unable to pay her university fees. She has explained how she tried to pay in instalments and she has demonstrated her genuine intent to study then by completing her Diploma and part of her nursing degree. She has also provided a letter of offer for a course should her visa be reinstated. She has presented as a genuine student who in hindsight should have returned back to Kenya when she learnt that she could not pay her fees.  However by the time she had tried to negotiate with the university on fee payment and attempted to discuss the issue with her mother, her COE was cancelled. The consequences of a cancellation are quite severe and the Tribunal has considered the factors outlined by the applicant to support a favourable use of discretion. The Tribunal has considered these factors individually and cumulatively and weighed them against the consequences of a cancellation and finds that in this instance, the applicant has demonstrated such commitment to her studies that she should be offered a second chance to complete her degree in spite of knowingly being in breach of her condition for 8 months.

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

    DECISION

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

    Rachel Westaway
    Senior 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.