Chumba (Migration)

[2019] AATA 2987

Chumba (Migration) [2019] AATA 2987 (14 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sharon Cherotich Chumba

CASE NUMBER:  1715558

HOME AFFAIRS REFERENCE(S):          BCC2017/1612659

MEMBER:Mark O'Loughlin

DATE:14 May 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 14 May 2019 at 5:13pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – failure to pay course fees by ex-husband due to injuries – reconciliation with husband – change of career plans to nursing –  circumstances beyond applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
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 10 July 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant breached condition 8202 of her visa and the grounds for cancelling the visa outweigh the grounds for not cancelling. 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 14 May 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s husband, Gordian Manirakiza.

4. 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

5. 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?

6. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it relevantly requires that the applicant:

   be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

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

8. The applicant was enrolled in a diploma of business and management  but she agreed in her evidence that  her enrolment was cancelled on 4 November 2016 for failure to pay course fees. On the evidence before the Tribunal, the applicant was enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

   Consideration of the discretion to cancel the visa

9. 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’

10. The applicant gave evidence that she was married in Kenya when she was 19 but that her husband moved to Australia.

11. She said she had been offered a bursary to study at a prominent university in Kenya but turned it down because she was expecting to join her husband.  The Tribunal accepts her evidence about this.

12. She gave evidence which the Tribunal accepts, that she and her husband had problems during the long distance relationship and that after 2 years, when she had not yet gone to Australia, she and her husband divorced and she undertook a Diploma of Tourism and Management in Kenya.

13. After that she took a job in Saudi Arabia in an hotel, working as a waitress.  In this time she and her ex-husband re-established contact.  The Tribunal accepts this evidence and also her evidence that she was upset with him and made it clear that she blamed him for preventing her from taking up her original bursary and going to University.

14. She said that he told her he regretted his actions and said that if she would come to Australia he would support her in studying here.  She said that she did not come to Australia to reunite with her ex-husband and that she did not believe that there was any prospect of that happening.

15. The Tribunal accepts that that was her intention at the time of coming to Australia but notes that her husband, who also gave evidence, did cherish hopes of a reconciliation.

16. The applicant said that she came to Adelaide at the suggestion of her ex-husband and that she started studying here with his support.  The Tribunal accepts that evidence and also her further evidence that her fees were paid for by her ex-husband until about November 2016, a period of about 8 months.

17. She said that her ex-husband was not communicating with her and that she went to Melbourne, where he was still living, to find out what the situation was.

18. She said, and the Tribunal accepts, that when she went to Melbourne her ex-husband admitted that he had suffered an injury and that his income had been compromised.  They had to pay $6,000.00 for the next part of the course.

19. She said, and the Tribunal accepts, that they tried to get an extension of time within which to pay but that they could not get long enough and that her enrolment was cancelled in November 2016.

20. She said that at about this time she had decided that the opportunities in hospitality had softened in Kenya and that, by reason of some discussions that her mother had had with a close friend, she believed that nursing presented a more realistic career option.

21. She said that after the cancellation of her CoE (confirmation of enrolment) in the Diploma of Business and Marketing she was unable to get into any other courses.  When she got her bridging visa after the cancellation of her Student visa in July 2017, she was able to enrol in a diploma of nursing.

22. The Tribunal notes that she did enrol in a Diploma of Nursing that started in November 2017.  The Tribunal accepts that she had trouble finding a relevant course that in which she was able to enrol, which accounts for the 4 month gap.

23. The Tribunal further notes, although it is not directly relevant in the circumstances, that the course that she is doing does not appear to be a registered course and would  not be sufficient to sustain her student visa.  As she is on a bridging visa that is not of much importance.

24. In the meantime, she and her ex-husband having effected a reconciliation, they remarried in September 2017.  The Tribunal heard evidence from both the applicant and her husband about that and accepts it.

25. The Tribunal was told, and accepts, that the applicant did not move to Melbourne to join her husband until about February 2018 and that by May that year she had a full time job in an advertising firm in Melbourne.

26. She said that her husband was wholly unable to work due to 2 arm injuries and that there had been some difficulty securing Workers’ Compensation payments, meaning that her income was an important source of financial stability since then.  Her husband supported that evidence and the Tribunal accepts it.

27. The applicant said that she also contributes to the care of her husband’s children.  They are aged 20 and 13 and the 13 year old lives with them full time.  His mother is in Africa and she sees herself as his mother since she has moved to Melbourne.  The Tribunal accepts this evidence with the reservation that the applicant’s husband gave evidence about a period of difficulty in the marital relationship in about December 2018 which lasted for a month or two but which has now resolved.

28. The applicant and her husband both said that he is restricted because of his injuries and unable to do chores around the house including cooking, cleaning and lifting, so the applicant has to do this for the 3 family members.

29. The Tribunal asked whether, in the event that the application is unsuccessful and the applicant has to return to Kenya, her husband would go back with her.  She said that he would not as he is an Australian citizen and is keen to ensure that his children are raised here.

30. The applicant’s husband gave essentially the same evidence and the Tribunal accepts it.  He also insisted that if this application is not successful they would explore other options because it would be so difficult for his son if the applicant is not available to him.

31. The Tribunal noted that, a student visa being necessarily temporary, it would not be a solution to that problem, and the applicant’s husband repeated that there would be the option of seeking a further visa.

32. The applicant also drew the attention of the Tribunal to an offer of enrolment in a further Diploma of Nursing course due to start in September 2019 which she sees as complementary to the diploma course she is already doing.

33. The Tribunal noted that this course, although apparently registered, may not be sufficient to sustain a 573 visa as it is a Diploma level course.

34. The applicant advised that she is confident that if she has her visa she will be accepted into a degree course and is keen to do so.  The Tribunal is not satisfied that this is the case.

35. The Tribunal’s attention is specifically directed to factors set out in PAM 3 in deciding whether to exercise the discretion to cancel the applicant’s visa.

36. The Tribunal accepts that the applicant’s purpose in travelling to and staying in Australia was to study.

37. Since she came a need has arisen to stay in Australia, being the need to stay with her husband with whom she has reconciled and to care for his son whom she said she regards as her own.

38. The applicant’s non-compliance with the condition that she be enrolled was fairly extensive lasting as it did from the cancellation of her enrolment in early November 2016 until the cancellation of her visa in July 2017.

39. The Tribunal accepts that there will be substantial hardship caused to the applicant if she is not able to continue her studies as she will have difficulty pursuing her chosen new career of Nursing in her native Kenya, it being a calling in respect of which she has no training that will be relevant there. 

40. The Tribunal accepts that she has been supported in her studies by her family in Kenya and that they expect her, as the eldest child, to contribute to support of her mother and 3 sisters in Kenya.  The Tribunal notes that she will not be able to do this if she returns without the degree level qualifications that she says, and the Tribunal accepts, that she wishes to pursue.

41. Finally, although it is a short term consideration the Tribunal notes that during the time that the applicant is able to study in Australia if her visa is not cancelled, she will be in a position to continue to support her husband and her son by replacing the ordinary housework that he is not able to do by reason of his injuries.

42. The Tribunal accepts that the applicant’s enrolment was cancelled because she was unable to pay her fees and that this was due to her then ex-husband’s injury which was a matter outside of her control.

43. There is nothing to suggest that the applicant’s past and present behaviour towards the Department should prompt the Tribunal to cancel the applicant’s visa.

44. There is no evidence that any other persons in Australia whose visas would, or may be, cancelled under S140 of the Act if the applicant’s visa is cancelled.

45. The applicant will become an unlawful non-citizen if her visa is cancelled and  if she does not voluntarily depart she will be liable to detention and removal from Australia.

46. The applicant will be subject to S 48 of the Act and will be restricted in her options to apply for further visas in Australia if her visa is cancelled.

47. There is no evidence of obligations Australia owes under any international agreements that would be breached if the applicant’s visa is cancelled. 

48. There are no other relevant matters that are apparent to the Tribunal or that the applicant asked the Tribunal to consider.

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

    DECISION

50. 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

    
    

    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.