Gitaka (Migration)

[2020] AATA 1299

Gitaka (Migration) [2020] AATA 1299 (4 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Patience Wanjiku Gitaka

CASE NUMBER:  1826865

HOME AFFAIRS REFERENCE(S):          BCC2018/248069

MEMBER:Wendy Banfield

DATE:4 February 2020

PLACE OF DECISION:  Sydney

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 04 February 2020 at 2:46pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course ceased – applicant changed courses then resumed Accounting studies – attempting to meet English requirements for Nursing – applicant continues studies in diploma course – 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 7 September 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 condition 8202 attached to her Student visa as she had not been enrolled to study for 9 months, from 15 May 2017 to 5 February 2018. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

   Background

3. The applicant is a citizen of Kenya and is currently 24 years old. She came to Australia on 10 June 2016 to study Accounting. The applicant was enrolled in a Diploma of Accounting and Bachelor of Commerce but discontinued her studies as she had decided to pursue a degree in Nursing instead. The applicant applied to a number of universities but changed her mind and resumed studying Accounting. Since her arrival the applicant has completed a Diploma of Accounting and plans to continue to a Bachelor degree.

4. The applicant appeared before the Tribunal on 19 December 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. 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

7. 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?

8. 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).

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

10. The applicant was not enrolled to study for the period identified by the Department, from 15 May 2017 to 5 February 2018. The applicant explained she had been attempting to meet the English requirements and enrol in Nursing at the time but did not dispute she had breached the conditions of her Student visa

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

    Consideration of the discretion to cancel the visa

12. 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 Procedural Instruction ‘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

13. The applicant came to Australia in 2016 and began her studies in Accounting. Since her arrival she has completed a Diploma in Accounting.  On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

14. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant submitted she wants to return to Kenya knowing she achieved what she came to do. She said she would not be able to undertake the same studies in her home country but did not explain why.

15. The Tribunal is not satisfied the applicant has demonstrated what could be considered a strong or compelling need to remain in Australia and does not place weight on the reasons for needing to remain in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

16. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

17. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled.

18. The applicant made submissions regarding the financial and emotional hardship that would be caused if her visa is cancelled. She referred to the significant funds expended so far which would lead to financial difficulty if the visa is cancelled. The applicant also explained she would suffer emotionally if she is not able to continue studying. The Tribunal accepts there will be a degree of hardship caused if the applicant’s visa is cancelled and gives some weight in her favour when assessing this criterion.

19. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

20. The applicant’s visa was cancelled because she remained in Australia as the holder of a Student visa but did not continue her studies for approximately 9 months. The applicant gave reasons for this, she submitted that she had been enrolled in a Diploma of Accounting and Bachelor of Commerce but did not continue as she had decided to study Nursing instead.

21. The applicant claimed that during the period when she was not enrolled she sat for an IELTS assessment in order to obtain an English score that would allow her to enrol in Nursing. She also submitted evidence of applications to several universities offering a Bachelor of Nursing. At the Tribunal hearing the applicant conceded she had not maintained enrolment as required by the conditions of her visa but claimed she had not realised she was putting herself at risk.

22. The Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study in breach of visa conditions. Nevertheless, the Tribunal is satisfied the applicant changed her mind about her field of study and did take steps to enrol in Nursing as evidenced by the documentation submitted. In the applicant’s favour is the fact that she re-enrolled in a Diploma course and continued studying. The applicant also submitted evidence that she is in the process of applying to study a Bachelor of Accounting at Southern Cross University. This provides some indication to the Tribunal that the applicant is a genuine student and she should be given another chance to demonstrate that she is. Together with the applicant’s consistent explanation of her situation, the Tribunal gives weight in favour of the applicant to the circumstances in which the ground for cancellation arose

    ·     past and present behaviour of the visa holder towards the department

23. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given the applicant some weight in this regard.

    ·     whether there would be consequential cancellations under s.140

24. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

25. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be 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

26. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. No evidence was provided to indicate the applicant has children.

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

27. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

28. The Tribunal considered the references to other Tribunal cases submitted by the applicant’s representative but notes each case has its own facts and is decided on its individual merits. The Tribunal did not rely on previous Tribunal decisions in this case.

    Conclusion

29. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are aspects of the applicant’s case that weigh against her, on balance, the Tribunal considers she should be given the opportunity to demonstrate her academic plans are sincere and she is a genuine student. The Tribunal is satisfied the issues encountered by the applicant in this particular case and her subsequent behaviour in continuing to study are sufficient reason for the visa not to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.