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

1. 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).

2. 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.

3. The applicant appeared before the Tribunal on 16 April 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. 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

7. 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.

8. 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 the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

9. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

10. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 14/015.

11. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

12. The applicant gave evidence, which the Tribunal accepts, that in about December 2015 when she received the results of her November 2015 assessment she decided that the Bachelor of Business course in which she was enrolled was not a suitable course for her.

13. The Tribunal also accepts her evidence that she enrolled 2 courses at the Southern Cross Education Institute.  They were General English (a course running from 4 April to 27 June 2016) and a Diploma of Community Services (running from 17 March 2016 to 3 August 2017). The applicant provided Confirmation of Enrolment certificates in relation to both of these courses.

14. Neither course had a title that suggested it was a course specified in IMMI 14/015 as satisfying the requirements of cl.573.231. 

15. The English course was not identified as part of a sector on the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS).  The Diploma was identified as a VET sector course and not a Higher Education Sector.

16. There is no evidence to suggest that the courses in which the applicant enrolled with Southern Cross Institute are courses specified in IMMI 14/015 as satisfying the requirements of cl.573.231.

17. The Tribunal notes that the delegate’s decision, a copy of which was provided to the Tribunal by the applicant, observes that the applicant’s enrolment in the original Bachelor of Business lapsed on 1 September 2016. 

18. That being the case, the only course that the applicant was enrolled in was the Diploma of Community Services from 1 September 2016 until 19 February 2018 when she enrolled in another Bachelor degree course.

19. During this period the applicant was not enrolled in a course that satisfied the requirements of cl 573.231.

20. 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

21. 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’.

22. 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.

23. 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.

24. 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.

25. 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.

26. 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. 

27. 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.

28. 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.

29. 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.

30. 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.

31. She said that she was in hospital for about 3 days and that after she came out she rested for about a week before returning to University.

32. She said that she had a cast on her arm for a while and that her arm was painful which was distracting.  She also said that her arm was itchy and swollen which was also distracting.  She said that Panadol was the only pain killer that she was happy to take as it was the only one that she was familiar with from Kenya, but that it was not enough to help mask the pain.

33. She also said that at about the same time she received news from Kenya that her father had suffered a stroke and was most unwell.  She said that she found that very upsetting.

34. The applicant said that the problems with her arm lasted until November and that when she got her results that December she failed everything.

35. The Tribunal accepts her evidence about these matters.

36. The Tribunal accepts that her disappointment with her results and her feelings of distress contributed significantly to her decision to change her course of study.  The Tribunal accepts that these matters were largely out of the applicant’s control and accords this consideration some weight in favour of not cancelling the visa.

37. There is no evidence of any behaviour by the applicant towards the department that suggests that the visa should or should not be cancelled.

38. There is no evidence that cancellation of the applicant’s visa would result in consequential cancellations under S 140 and the Tribunal accords this consideration no weight.

39. There is no evidence of mandatory legal consequences of cancellation of the applicant’s visa and in particular the Tribunal finds that the applicant will have the opportunity to return to Kenya if her visa is cancelled and accords this consideration no weight against exercising the discretion to cancel the visa.

40. There is no evidence of international obligations including non-refoulement and best interests of the child that would be breached as a result of the cancellation and the tribunal accords this factor no weight against exercising the discretion to cancel the visa.

41. The Tribunal notes that in submissions to the Department dated 5 June 2017, the applicant’s representative advised that she had enrolled in the Diploma of Community Services in early 2016 with the intention of continuing to study a Bachelor in Human Services (Disability) at Torrens University.

42. The Tribunal notes that the applicant did proceed to complete her Diploma of Community Services while awaiting this hearing.  Further, she enrolled in the Bachelor of Human Services (Disability) although that course changed its name and she is now enrolled in a Bachelor of Applied Social Science (Community Services).

43. The Tribunal further notes and accepts a letter from Torrens University saying that she has now been granted Recognition of Prior Learning for the study she did in the Diploma of Community Services which gave her a year of credit for the Bachelor degree.

44. The letter further notes that she has attained either a pass or a credit level for all of the subjects she has completed so far in the Bachelor course.

45. The letter further indicates that she is now “well on her way” to completing her studies.

46. The Tribunal accords this factor some weight against cancelling the visa.

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

    DECISION

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

    Mark O'Loughlin
    Member