Gitau (Migration)

[2023] AATA 63

Gitau (Migration) [2023] AATA 63 (3 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Boniface Mburu Gitau

CASE NUMBER:  2107158

HOME AFFAIRS REFERENCE(S):          BCC2019/5316176

MEMBER:Penelope Hunter

DATE:3 January 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 3 January 2023 at 12:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – gaps in study – limited academic progress – family compassionate circumstances – financial hardship – course nearly completed – theft of study documents – impact of the COVID-19 pandemic – decision under review set aside        

LEGISLATION

Migration Act 1958, ss 48, 116, 119, 140
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43

CASES

MIMA v Hou [2002] FCA 574
Wan v MIMA (2001) 107 FCR 133                

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 28 May 2021 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(fa)(i) of the Act on the basis that the applicant was not found to be a genuine student. 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 has provided a copy of the delegate’s decision record with his application for review to the Tribunal.

3. The applicant appeared before the Tribunal via MS Teams video on 3 November 2022  to give evidence and present arguments.

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. 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)(fa)(i). 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?

6. A visa may be cancelled under s 116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s 116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

8. For matters where the notice of proposed cancellation under s 119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s 116(1)(fa) exists: s 116(1A), reg 2.43(1C) and (1D) of the Migration Regulations 1994 (Cth) (the Regulations). The prescribed matters are set out in the attachment to this decision.

9. The applicant is a 26 year-old male from Kenya, who arrived in Australia on 4 October 2018. He was granted his student visa on 24 September 2018 to undertake study in a Diploma of Computing and Information Technology and a Bachelor of Information Technology at the University of South Australia, due for completion on 31 July 2021.

10. On 14 May 2021, the Department wrote to the applicant with a Notice of Intention to Consider Cancellation (NOICC) under s 116 of the Act, as certain information before the Department, indicated that the applicant was not, or was not likely not to be, a genuine student, and invited comment from the applicant. The Tribunal is satisfied that the NOICC was validly issued. The NOICC identified that there were gaps in the applicant’s study and a lack of academic progress. The relevant information, as disclosed in the delegate’s decision record was as follows:

    i.The applicant’s Provider Registration and International Student Management System (PRISMS) records indicated that his enrolment in the Diploma of Computing and Information Technology was cancelled due to deferment/suspension- compassionate or compelling circumstances with the comment that “student has been granted leave under family compassionate circumstances.” A new CoE was issued in the same course on that date.

    ii.PRISMS then indicate that that on 16 July 2019, his CoE in the Diploma of Community Services was cancelled, due to ‘student notifies of cessation of studies’ with the comment  ‘student did not recommence study in Trimester 2, 2019.’

    iii.Following this PRISMS record that the applicant obtained an enrolment in General English on 27 November 2019 and he completed this course on 23 December 2019.

    iv.On 04 May 2020, applicant obtained an enrolment in the Diploma of Community Services course at Nurse Training Australia.

    v.On 07 December 2020, the CoE for the Diploma of Community Services course was cancelled due to non-payment of fees and unsatisfactory course progress.

    vi.On 06 May 2021, the applicant  was contacted by a departmental officer by email to verify his current contact details and on 7 May 2021, the applicant obtained an enrolment in a Diploma of Community Services at Australian Harbour International College.

11. The delegate considered the submissions of the applicant and on 28 May 2021, the delegate determined to cancel the applicant’s visa as they were not satisfied that the applicant was a genuine student, due to his significant lack of academic progress over a substantial period of time while remaining in Australia on a visa solely existing for the purpose of study.

12. The Tribunal discussed with the applicant at the hearing information upon which the grounds for cancellation arose as set out in the material before the Tribunal. Particularly:

    i.That the applicant was not enrolled in a course of study from 16 July 2019 to 28 November 2019, 23 December 2019 to 20 April 2020, and from 7 December 2020 to 6 May 2021. This was a period of over 13 months.

    ii.The applicant had only obtained a new CoE on 7 May 2021 after being contacted by the Department.

    iii.Prior to the decision to cancel the visa the applicant had held a student visa for over 31 months but had only held valid enrolments for 17 months. Further his total period of study was ten months.

    iv.In over 31 months since the student visa was granted the applicant had only completed one short course in English.

    v.The applicant had not maintained the educational pathway for which the visa was granted and had failed pursue and alternative pathway that would enable him to achieve an equivalent qualification at the higher education level. He had not been enrolled in a bachelor level qualification since July 2019.

13. The applicant was invited at the hearing to make submissions as to whether he disputed the above facts and he confirmed that the information was correct.

14. On assessing the material the Tribunal is satisfied that as at the date of the delegate’s decision the applicant had demonstrated a failure to abide by the conditions of his visa in that he had several periods in which he was not enrolled in a full-time registered course of study, being from 16 July 2019 to 28 November 2019, 23 December 2019 to 4 May 2020, and from 7 December 2020 to 6 May 2021. This was a period of over 13 months. The applicant had also failed to maintain enrolment at the same level or a higher level than the bachelor degree qualification for which his visa was granted, from July 2019, a period of almost two years. On the material before the Tribunal the only course that the applicant had completed was an English course and aside from a single English course, the evidence indicates that in the 31 months in which the applicant held the visa he had consistently failed to participate in and complete courses. Such an unsatisfactory study record demonstrates that the applicant may not have been committed to his studies, or in Australia for the primary purpose of study. The Tribunal is satisfied that this pattern of conduct is not consistent with a genuine student, it is not conduct that is contemplated by the grant of a student visa, and it demonstrates that the applicant is not, or is not likely to be, a genuine student.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(fa)(i) 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

16. 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’.

17. The Tribunal has considered the oral evidence of the applicant provided at hearing, together with the submissions and documents provided by the applicant to the Department and the Tribunal.  Particularly, on 19 May 2021, the applicant responded to the Department and he provided the following information (in summary):

    i.He was initially enrolled to undertake a diploma at Eynesbury University College and advance to a bachelor degree at the University of South Australia (UniSA). While undertaking his second semester of the diploma, his father became very ill. His father was also his sponsor. The applicant claimed to have sought advice from the school administration and made the decision to apply for leave as he was behind in his classes and late in the payment of fees. He intended to return the following semester.

    ii.On 9 July 2019 his father was admitted to hospital and was only discharged on 22 July 2019, there was a large hospital bill which led to severe financial hardship for his family. The applicant provided a copy of a clinical summary for Jeremiah Gitau dated 22 July 2019 and a receipt dated 22 July 2022 from Kitengela Medical Services Ltd.

    iii.At the end of July or August 2018, his car was ransacked and his personal documents stolen as well as the car battery. He lost his school documents and reported the matter to the police. The applicant submitted a copy of an online request for information to the police dated 17 May 2021. Then on 5 August 2019 his enrolment was cancelled by UniSA due to his failure to recommence his studies at Eynesbury University College.

    iv.He sought advice from his education agent and applied to a new college, the Australian Health Management Institute (AHMI). He had enquired on 16 August 2019, and then obtained an offer letter but the intake had already closed and he had to wait until the new intake on 14 October 2019. The applicant provided a letter of offered issued 16 August 2019 from AHMI.

    v.On 8 August 2019 he had a court case in the Adelaide Magistrates court for a traffic offence. This resulted in stress and fines. He then got a call from his agent that AHMI College was not taking any students in the Diploma of Community Services he had proposed to undertake, and he had to find another course.

    vi.On 21 October 2019, he was charged with a further traffic offence and had another court case on 25 November 2019. He had a bail condition that he could not change state or address. He was intending to pursue a course intake after 25 November 2019, but when he attended court the matter was adjourned to 10 January 2020. The applicant provided a copy of his Bail Agreement issued by the Magistrates Court of South Australia in Adelaide dated 25 November 2019.

    vii.He undertook an English course between 25 November 2019 and 22 December 2019 in order to maintain his enrolment. The applicant provided a copy of his Confirmation of Enrolment (CoE) in English.

    viii.He was placed on good behaviour bond in January 2019, and was able to move interstate and commence his studies. The applicant submitted a copy of his certificate of record issued by the Magistrates Court of South Australia in Adelaide on 10 January 2020

    ix.While waiting for the next intake he started working in the NDIS sector. On 6 April 2020 he obtained an offered letter from Nurse Training Australia (NTA) for a Diploma of Community Services. He joined the college on 12 April 2020, there was a misunderstanding in fees between himself and his agent and he had to pay an extra $1500 at short notice otherwise his enrolment would be cancelled. The COVID-19 pandemic had affected his family business and they had ceased trading. The applicant was unable to obtain the additional fees at short notice and his enrolment was again cancelled.

    x.As he was under financial hardship he could not get into another course immediately. Things improved and in May 2021 he obtained an enrolment in a Diploma of Community Services with the Australian Harvard International College. He worked in the same sector as a disability worker and was keen on building his career as a community worker. He wished to continue his education in Australia and his Australian qualification would be a valuable asset for him and a source of pride for his family.  He claimed that due to circumstances beyond his control he was prevented from complying with his visa conditions.

18. 24 October 2022, the applicant provided the following submission to the Tribunal:

    i.He had experienced a rough journey as his father had medical issues that had continued to date, and the applicant  The applicant also submitted some medical records for Jeremiah Gitau. He was also traumatised and stressed due to having documents stolen from his car.

    ii.The COVID-19 pandemic affected his job and schoolwork and he could not get any help from overseas. His father was still sick and he had bank loans that required monthly payments. All his father’s funds were used on hospital bills (the applicant submitted a sample of hospital bills and a screenshot of a bank account ledger for his father). As the eldest of four sons, the applicant claimed that he had to step in for his family and work to provide the things that he could. He joined the health department worked with aged and disabled people and was promoted to house coordinator. He had formed good friendships and was able to manage his education, pay taxes and support his family.

    iii.His partner was about to come to Australia to study. It has been their wish to reunite again and he has waited four years to see her. (The applicant provided a letter of offer dated 20 September 2022 from James Cook University to Ms Charity Mathenge).

    iv.He had a current injury to his right foot which has affected his mobility the past month and had recently suffered from influenza.

    v.He was of good character, hardworking, responsible e and law abiding. He hoped to complete his education and help his country with the knowledge and skills.

    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

19. The visa was granted for the purpose of the applicant to undertake study in Australia, he was to undertake a diploma in IT and then complete bachelor level studies in the same discipline around 31 July 2021. The Tribunal accepts that the applicant initially came to Australia for the purposes of study.

20. Yet  he did not complete these studies, or continue with any further enrolment in IT and the period for which his initial student visa was granted has now expired. In these particular circumstances it is not demonstrated that the initial purpose of his original study remains.

21. The applicant claims that he still wishes to have the opportunity to complete an Australia qualification and advance his skills. He also wished to demonstrate to his siblings that anything was possible, and it would be a big step for his family for him to obtain Australian qualifications.

22. The applicant submitted to the Tribunal that even while his visa was cancelled he sought permission to be able to continue to work and study. He is once more enrolled in the Diploma of Community Services now at the Australian Harbour Institute. He claimed that he had maintained enrolment while awaiting review and that he would finish this course in another two semesters. In the future he could then go back and give back to his country.

23. When asked if he could not undertake a similar course in his home country, the applicant claimed that he was not sure of the availability of community services courses in Kenya. The Tribunal asked the applicant if his proposed course would assist him to obtain employment in his home country and he said that with Australian qualifications he may be able to find work in the health sector or community services.

24. The Tribunal accepts that the applicant similar studies in community services may not be available to the applicant in his home country. It is also acknowledged that the applicant claimed at the hearing that he had only two semesters of study left of his Diploma of Community Services. His PRISMS records indicated that his course is due to conclude shortly, on 19 February 2023. It is accepted that the applicant as spent a considerable sum in the attempt to obtain Australian qualifications, that this will improve his employment prospects in his home country and that his proposed course is due to finish very shortly.   

25. Overall  the Tribunal places some weight on this factor in favour of the applicant.

26. The extent of compliance with visa conditions

27. The applicant was not enrolled from 16 July 2019 to 28 November 2019, 23 December 2019 to 20 April 2020, and from 7 December 2020 to 6 May 2021, a total period of 13 months. He did not comply with clause 8202(2)(a).

28. His visa was also subject to condition 8202(2)(b) and he must maintain enrolment in a course that once completed would provider a qualifications from that AQF level which is the same level or higher for which the visa was granted. He had not maintained enrolment at the bachelor level for 22 months.

29. The Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa. These incidents of non-compliance are integral to the findings giving rise to the visa cancellation, and also consider integral to the purpose of the grant of the student visa.

30. The Tribunal gives this discretionary factor no weight in favour of the applicant.

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

31. The applicant submitted that he had struggled a lot while attempting to study in Australia, his father’s illness had caused considerable difficulty for his entire family. He told to the Tribunal that things became very dark for him when his visa was cancelled and he has been worried since then not knowing what the future held. Then the pandemic occurred and this impacted the family even harder, and made it difficult for him to survive alone in Australia. At the same time he has had to step up for his family as the eldest of four siblings and ensure that his brothers could continue their education and that there was food on the table back home. He understood that this was not the purpose of a student visa but at times the family situation was desperate. His mother has also suffered medical issues subsequent to the visa cancellation which have also resulted in further debt. The applicant submitted to the Tribunal evidence of treatment provided to his mother, Veronica Wanjury. He does not know what will happen if is to return to Kenya as he does not yet have an educational qualification and he would struggle to support himself, assist his family who had initially sacrificed so much so he could come to Australia to study and to have a life.

1. He also believes that he has to set a good example for his siblings and if he does not finish his course they may not have the confidence that they could do further studies. If he cannot get a job in the future he may not also be able to assist his siblings with their future education.

2. The applicant further submitted that his girlfriend had obtained an offer of enrolment at James Cook University in Queensland and she was hoping to get a visa to come to Australia to study in 2023. They had not seen each other for four years and he was excited to be able to see her again. He did not plan to move to Queensland but just to be in the same country meant that he could visit. 

3. It is acknowledged that the applicant has spent a considerable amount of money since his arrival in 2018 on the pursuit of Australian qualifications. It is also acknowledged that the applicant has nearly completed his Diploma of Community Services. The Tribunal accepts that with the change in his family’s finances he is unlikely to be able to pursue further education for some time, and unlikely to have the opportunity to obtain overseas qualifications again. It is also accepted that it will improve the prospects of the applicant’s employment and future remuneration if is he able to complete his diploma.

4. The Tribunal gives this factor some weight in favour of the applicant.

   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

5. The applicant has detailed several incidents that impacted on his studies while in Australia. The Tribunal accepts from the medical evidence submitted that his father became ill. The applicant was granted a deferral of his studies in the Diploma of Computing and Information Technology from Eynesbury University College on 29 March 2019, and he was granted leave under family compassionate circumstances for the period 25 February 2019 to 30 June 2019. The applicant has provided the discharge summary and clinical abstract records that the applicant’s father was admitted to Kitengela Medical Services Ltd and required treatment from 9 July 2019 to 22 July 2019, he was then discharged to Maragua District Hospital from 22 July 2019 to 28 July 2019. The Tribunal accepts the claims of the applicant that his father was sick for some time before he sought treatment, that this impacted on his ability to afford his studies and the information before the Tribunal does not suggest that the applicant’s deferral was obtained because he had misrepresented his circumstances.

6. The applicant’s subsequent enrolment in the Diploma of Computing and Information Technology from Eynesbury University College was cancelled due to “student notifies of cessation of studies with the comment that the with the comment ‘Student did not recommence study in Trimester 2, 2019’. The CoE for applicant’s the Bachelor of Information Technology course was cancelled on the same date due to ‘non-commencement of studies’. The applicant claims that at this time he was still impacted by his father’s illness. This is corroborated by the medical evidence that he has submitted. The Tribunal has considered the invoice  that the applicant has submitted from Kitengela Medical Services Ltd for the sum of 1,218,645 Kenyan Shilling. It is accepted that these are just part of the medical costs incurred and that this would have impacted on the ability to the applicant’s father to assist the applicant with the costs of his studies.

7. The Tribunal has concerns about the applicant’s further conduct while the holder of a student visa from this point. He did not obtain and another enrolment until 25 November 2019, this was in the course of General English for a period of four weeks. The applicant has further provided several reasons for the gap in his enrolment between July and November 2019. Firstly he claims that his personal documents were stolen from his car in July or August 2019. He has submitted a copy of an enquiry he made online for a police report about this incident. It is noted that this enquiry was made almost two years later in May 2021. It is noted that the applicant only refers to a report being made in 2019 about a car robbery, not July or August as he has claimed in his submissions. However, again the Tribunal will provide the applicant with the benefit of the doubt and accepts that he may have been a victim of theft as he claimed. The applicant told the Tribunal that the relevant documents were copies of his academic transcripts from studies in Kenya. He claims that the loss of these documents impacted on his ability to obtain an offer of enrolment from a number of institutions. It is accepted that this could be one reason for some delay in obtaining a further enrolment.

8. The applicant has also claimed that he was unable to act on further offers of enrolment that he obtained from AHMI. The Tribunal has considered the letter of offer he has submitted, it is issued on 16 August 2019, and commencement date was 14 October 2019. The Tribunal is not satisfied without further corroborative evidence that it was too late for him to take up this offer. The applicant then claimed that he could not act on further enrolments due to bail conditions and matters he had before the Magistrates Court of South Australia in Adelaide, arising from incidents on 8 August 2019 and 5 September 2019. The Tribunal accepts that it was a condition of the bail imposed on the applicant on 25 November 2019 that he not leave the state of South Australia and the applicant was at the time seeking courses in New South Wales. The applicant said he chose to move to NSW due to the costs of the course. It is not apparent to the Tribunal why the applicant could not find enrolment in a similar Diploma of Community Services in South Australia, given the costs of relocation and the bail condition he was aware that he was under. Further, the Tribunal does not accept that the circumstances that led to the commission of the offences which resulted in the applicant being placed on bail were outside his control. The applicant argued before the Tribunal at the hearing that there were no similar driving laws in Kenya. The Tribunal does not accept this as an excuse for the initial offence of failing to produce a drivers licence and failure to submit to Alcotest/breath analysis. Furthermore, having committed the initial offence and been charged it is not satisfied that it is a reasonable excuse for the subsequent offence of driving while disqualified and providing false or misleading information to the police. The applicant also told the Tribunal that due to the stress of his family circumstances he has had problems at times with alcohol. He has subsequently sought assistance through alcohol counselling.

9. Once the applicant finished his English course in December 2019, he then did not obtain a further enrolment until 20 April 2020. When invited to explain this gap in enrolment at the hearing the applicant claimed that he had to wait until his charges were dealt with in January 2020 before he could move. Then AHMI was not longer offering the course he was interested in. At the time he was dealing at the time with an education agent by the name of Apollo International, and he said that it took some time for them to find him a suitable course that he could afford and for offers to be provided and for him to consider these offers.

10. The applicant next obtained enrolment in a Diploma of Community Services at Nurse Training Australia, from 20 May 2020. This enrolment was cancelled on 7 December 2020 for non-payment of fees and unsatisfactory course progress. The applicant confirmed the reason for cancellation at the hearing and was invited to address the reasons for cancellation. He claimed that he was advised by his education agent that if he paid the course fees through the agent that he would get a discount. He paid what he thought was the appropriate fees to the education agent and the education provider either did not recognise the discount or there was a miscommunication by the education agent. The applicant claimed that he thought that this was an issue that the education agent should have corrected. The applicant further acknowledged that he did not pay the outstanding fees to have his enrolment reinstated. It is noted in submissions that an additional $1500 was required that he claimed he was unable to obtain at short notice. The applicant submitted to the Tribunal that at the time the pandemic was impacting on the ability for his father to get back into employment and also his ability to secure stable employment in NSW. He did not have the funds to address the matter.

11. The applicant remained without an enrolment until after contacted by the Department and only obtain another enrolment in the Diploma of Community Services on 7 May 2021 for a course commencing 24 May 2021. When invited to explain the further delay and address concerns that he had only obtained his enrolment to satisfy a condition of his visa about which his non-compliance had been identified the applicant told the Tribunal that he had already engaged the services of a new education agent and was making plans to study again before the Department contacted him. He submitted that this took  time because of the impact of the pandemic and many places were closed. It also impacted on his ability to maintain employment and his family’s financial situation had not improved. His grandfather died in December 2020 due to Covid-19. Unfortunately his grandfather had also been helping the family out financially. The applicant submitted that he had already taken steps to arrange enrolment when the Department contacted him, he just needed secure employment and sufficient funds for the course.

12. The applicant originally intended studies in Information Technology and proposed to undertake a bachelor level qualification. This was the Australian Qualifications Level for which he was granted his initial student visa, and also part of condition 8202 imposed on that visa. The applicant was questioned as to his failure to maintain enrolment at this level and he claimed that once his father became ill he was seeking courses that were cheaper that he hoped to fund himself. He did not seek to change his visa condition, he claimed that he was not advised that this was possible.

13. Considering all the relevant factors advanced by the applicant it is accepted that the illness of the applicant’s father and bills consequently faced by the applicant’s family were outside his control. This may account for the disruption of his studies which lead to he cancellation of the enrolments in his IT courses. the Tribunal is not satisfied that the offences that the applicant was charged with and the fact that he had ongoing court proceedings were outside his control. The applicant bears the responsibility for the consequences of these offenses. It is accepted however that there were further matters that were outside the control of the applicant including the theft of his documents, the impact of the pandemic on his family finances and his ability to support himself it Australia. It is also accepted that the death of his grandfather due to COVID-19 was outside his control. It is acknowledged that there was a cascading sequence of events that were outside the applicant’s control. The Tribunal does have some concerns however about the length of the gaps in the applicant’s enrolment.

14. The Tribunal needs to balance this with the fact that the applicant was clearly also aware that without an enrolment he was not complying with the terms of his student visa. Further, the failure to maintain enrolment at the bachelor level was a deliberate decision by the applicant to change to what he considered was a more affordable discipline. The applicant did not obtain proper advice as to the consequences of this decision.

15. Therefore, the Tribunal attributes some weight to these circumstances in favour of the applicant.

    Past and present behaviour of the visa holder towards the department

16. There is no evidence that the applicant has been uncooperative in his dealings with the Department in the past.

17. The Tribunal gives this factor some weight in the applicant’s favour.

    whether there would be consequential cancellations under s 140

18. The applicant confirmed for the Tribunal that he was single with no dependents. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. Accordingly, the Tribunal gives this factor no weight.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or

19. If the applicant no longer had a valid visa he would be required to depart Australia. He would further be subject to s 48 of the Act which would limit his options for returning to Australia or applying for other visas. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa. The applicant said that he would abide by any relevant consequences. The Tribunal notes that these are also intended and legitimate consequences of cancellation.

20. If the visa is cancelled the applicant would continue to hold a bridging visa for a short time to allow him to finalise his affairs before he departed. If the applicant himself did not take steps to return he could face consequence such as detention and removal from Australia. Upon questioning by the Tribunal the applicant said that if the visa was cancelled and he had exhausted all avenues of review he would voluntarily depart Australia. He indicated that he does not have any intention to become unlawful and he would cooperate with Australia’s migration laws. On the evidence of the applicant it is therefore unlikely that he would face detention and removal.

21. The Tribunal gives this consideration neutral weight.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

22. Other than personal disappointment and disappointing his family, the applicant did not identify any fears when questioned of returning to Kenya. He has no children that would be impacted by the cancellation decision. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations. Nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

23. There is no weight attributed to this factor.

    Any other relevant matters

24. The applicant did not raise any other matters.

    Conclusion

25. The Tribunal has considered the applicant’s circumstances and weighed the relevant considerations as discussed above. In balancing these matters it is satisfied that as a whole there are generally aspects that are favourable to the applicant, as discussed above. Particularly considering the reasons the grounds for cancellation arose, the consequences of cancellation, the degree of hardship and his cooperation with the Department. It is noted that the applicant has only two months left of his diploma. The Tribunal has also balanced this with the purpose of the student visa and the fact that enrolment and course progression is integral to its purpose. The conduct of the applicant that gave rise to the cancellation was a one off incident but a series breaches and this weighs heavily on the Tribunal. It has been a matter of careful consideration, however on balance when considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    decision

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Penelope Hunter
    Member

    
    

    ATTACHMENT – Extract from reg 2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.