Gitemi (Migration)

[2019] AATA 4432

Gitemi (Migration) [2019] AATA 4432 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Brenda Kirigo Gitemi
Mr Adam Kuria Gitemi

CASE NUMBER:  1729330

HOME AFFAIRS REFERENCE(S):           BCC2017/3334664

MEMBER:Mark O'Loughlin

DATE:24 July 2019

PLACE OF DECISION:  Adelaide

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 24 July 2019 at 11:51am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course cancelled – relationship ceased – applicant returned to Kenya to collect child – family financial support no longer available – 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 16 November 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named 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 first named applicant (“the applicant”) breached a condition of her visa. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

4. The applicants appeared before the Tribunal on 22 July 2019 to give evidence and present arguments. The Tribunal did not take evidence or ask questions of the second applicant, Adam Kuria Gitemi, he being a child of 6 years of age.

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. 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?

7. 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).

8. The applicant’s former representative made submissions to the delegate on 2 November 2017 which included the sentence “The applicant acknowledges that there has been a breach of the visa condition and that the grounds for cancellation exist.”

9. In her evidence the applicant agreed that her enrolment in the relevant registered course (a Diploma of Business that was to lead to a Bachelor of Business) was cancelled.  She explained that her husband had stayed in Kenya when she came to Australia to study.  Her study was being supported by her husband’s family.

10. She further gave evidence, which the Tribunal accepts, that her relationship with her husband broke down and she got a deferral from her educational institution so that she could return to Kenya and collect her infant son.  When she returned to continue her studies, the financial support from her in laws stopped and she could not meet her tuition fees.

11. Ultimately that resulted in the termination of her enrolment.

12. 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

13. 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’

14. There is no suggestion that the applicant’s travel to or stay in Australia was other than for study.

15. The applicant has generally complied with other visa conditions that have applied to her although her financial circumstances would no doubt have meant that she would have had great difficulty continuing to do so.

16. The applicant gave extensive evidence of the various hardships that she will face if her visa is cancelled. 

17. She told the Tribunal that she has experience in Kenya working for a marketing organisation arranging promotions.  She said that she was not able to seek better paid employment due to her lack of qualifications and that in any event, if she had to go back to Kenya that job would not be available to her because the company no longer exists.

18. She also gave evidence, which the Tribunal accepts, that she does not have family in Kenya to whom she can turn as her parents and grandparents are dead.  She has a sister still living in Kenya but she is ill and in no position to support her.

19. The applicant dreads the possibility that she will need to return to her husband who has in the past been physically and emotionally abusive to her and to her sister.  She said that her young son had regularly been upset by the actions of his father and she believed that this would probably be worse if she had to go back.  She said, and the Tribunal accepts, that she did not see any viable alternative if she were forced to return to Kenya without qualifications that would enable her to find work that would pay enough for her to support herself and her son and to send her son to school.

20. The Tribunal accepts that the applicant would experience significant financial, emotional, physical, and possibly psychological hardship in that event.  The Tribunal further finds that her son will suffer similar hardships if the applicant’s visa is cancelled.

21. The Tribunal accepts that the circumstances in which the applicant’s enrolment was cancelled were outside of the applicant’s control and notes that this is enough to suggest that the visa should not be cancelled. 

22. There is nothing in the evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the department has been inappropriate and should prompt the Tribunal to consider exercising its discretion to cancel her visa.

23. If the Tribunal exercises its discretion to cancel the applicant’s visa, her son’s visa will also be cancelled under section 140.  Given his age, he is likely to accompany his mother if she returns to Kenya and so the fact of the cancellation of his visa is not strongly persuasive.  The Tribunal distinguishes this consideration from the consideration of the hardships that the boy will suffer but notes that this is a different consideration.

24. If the Student visa is cancelled, the visa holder and her son will become unlawful non-citizens.

25. They will need to apply for bridging visas. She may become liable to detention under section 189 and to removal under section 198 if she does not get a bridging visa or leave voluntarily.

26. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean she will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

27. The Tribunal also notes that the applicant has chosen to change from a business course to Nursing.  She told the Tribunal, and the Tribunal accepts, that she made that change because she has been working in aged care while here on her student visa and her bridging visa. 

28. She said that she likes the work and that it prompted her to consider nursing as a career.  She understands that with Australian qualifications she should be able to find employment in Kenya that pays well enough to meet her needs.  She therefore chose to change from business studies to nursing.

29. In trying to find a course that she could afford while restricted to working 40 hours per fortnight, a usual condition of a student visa, she enrolled in a college to do a diploma in Nursing that would lead to a Bachelor’s course.  She said that she understood that the college had experience with international students and that there would be no problem with her visa.

30. The Tribunal finds that, in this, the applicant was naïve but that she is honest in her evidence that she was continuing to comply with her visa conditions.  In fact the course she was doing was not a relevantly “registered course” for the purposes of the Act and so her enrolment did not save her from falling outside of the requirement that she be enrolled.

31. The applicant further gave evidence that her enrolment cost a substantial amount of money which is now lost. 

32. Finally, when the applicant’s visa was considered by the delegate, she had tried to enrol in a relevantly registered course but her enrolment could not be confirmed until she had done an English test.  She gave evidence, which the Tribunal accepts, that she passed that test.  The Tribunal observes that her evidence was given without an interpreter and that the applicant’s spoken English was excellent.  The Tribunal notes that this should not now be a hurdle to her enrolment.

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

    DECISION

34. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 573 Higher Education Sector visa. The Tribunal has no jurisdiction with respect to the other applicant.

    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.