Cheserem (Migration) - [2019] AATA 2846

Cheserem (Migration) [2019] AATA 2846 (3 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Catherine Chelagat Cheserem
CASE NUMBER:  1714153
HOME AFFAIRS REFERENCE(S):           BCC2017/1423234
MEMBER:Mark O'Loughlin
DATE:3 June 2019
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 03 June 2019 at 12:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – length of non-compliance – degree of hardship – lessening of earning capacity – circumstances giving rise to non-compliance – car accident – broken arm – laceration to liver – currently enrolled in a Bachelor degree – “well on her way” to completing her studies – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cl 573.231; Schedule 8, Condition 8516
CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant has not complied with a condition of the visa, namely condition 8516. 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 16 April 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by her registered migration agent.
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
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, 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?
s.116(1)(b) - non-compliance with conditions
A visa may be cancelled under s.116 (1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa.
Condition 8516 requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cheserem (Migration)

Details

AGLC: Cheserem (Migration) [2019] AATA 2846
Case: [2019] AATA 2846
Decision Date: 3 June 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Cheserem, a holder of a Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector). The dispute concerned the cancellation of her visa on the ground that she had ceased to be enrolled in a Higher Education Sector course, thereby failing to continue to satisfy the primary criteria for her visa.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(b) of the Migration Act 1958 (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The Tribunal noted that the ground for cancellation did not mandate a mandatory cancellation.

In considering its discretion, the Tribunal weighed various factors. It gave some weight in favour of not cancelling the visa to the fact that the applicant's purpose for travel was study and that she had not otherwise breached her visa conditions. However, it accorded significant weight in favour of cancellation to the prolonged period of non-compliance, which extended for nearly a year and a half. Against cancellation, the Tribunal considered the potential emotional hardship to the applicant's family in Kenya and the potential lessening of her earning capacity and financial hardship for her young family if she could not complete her studies. Crucially, the Tribunal accepted evidence that the applicant's failure to maintain enrolment was due to circumstances outside her control, specifically a car accident in August 2015 which resulted in a broken arm and a liver laceration. The applicant was described as being "well on her way" to completing her studies.

The Tribunal found that the ground for cancellation existed but ultimately set aside the decision to cancel the applicant's visa, exercising its discretion not to cancel.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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 must proceed to consider whether the visa should be cancelled.Consideration of discretion 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’. There is no evidence to suggest that the purpose of the applicant’s travel to and stay in Australia were for reasons other than for study. The Tribunal accords this consideration a little weight in favour of not exercising its discretion to cancel the applicant’s visa. There is no evidence that, other than in relation to the matters arising from the subject cancellation, the visa holder has not been compliant with visa conditions. The breach of the condition that she maintain enrolment in a Higher Education Sector course extended over a period of nearly a year and a half. The Tribunal accords this factor significant weight in favour of exercising its discretion to cancel the applicant’s visa. The applicant provided the Tribunal with a birth certificate showing that on 14 January 2019 she gave birth to a daughter. She told the Tribunal, and the Tribunal accepts, that she and her partner, who is also a Kenyan citizen, intend to return to Kenya after her studies have finished in May 2020. She gave evidence, which the Tribunal accepts, that she and her partner intend to marry and set up a home on their return to Kenya and that they will both work. She said that if she is not able to finish her studies she will be obliged to take much less well paid work or indeed face unemployment and be obliged to rely on her husband’s earnings. She said that she has had to draw heavily on assistance from her family to pay her university fees but that she is not expected to repay the money. She said, and the Tribunal accepts, that she is expected to use her education to achieve success and a well paid job. The Tribunal finds that although the cancellation of her visa will not result in financial hardship to her parents in Kenya, it may result in emotional hardship and the Tribunal accords that some weight against exercising the discretion to cancel the applicant’s visa. Further, the Tribunal accepts that failure to complete her studies may result in a lessening of her earning capacity and cause her young family financial hardship when she returns to Kenya and accords this consideration some weight against cancellation of the visa. The applicant submitted forcefully that the circumstances of her failing to maintain her enrolment in the original Bachelor of Business were outside her control. She provided evidence of a car accident in which she was injured at the end of August 2015, The evidence, which the Tribunal accepts, shows that she broke her arm and suffered a laceration to her liver.