Gukwa (Migration)

[2019] AATA 3305

Gukwa (Migration) [2019] AATA 3305 (12 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Tanyradzwa Charmaine Gukwa

CASE NUMBER:  1826045

HOME AFFAIRS REFERENCE(S):          BCC2018/2308923

MEMBER:Damian Creedon

DATE:12 July 2019

PLACE OF DECISION:  Perth

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 12 July 2019 at 5:31pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa –not enrolled in a registered course of study – applicant failed to compile with condition 8202– non-payment of fees –successful academic progression – financial strain beyond her control – decision under review set aside

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 August 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 ceased to be enrolled in a registered course on 18 September 2017. 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 21 June 2019 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. 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 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 her or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by her or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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 delegate’s decision record, a copy of which was provided to the Tribunal by the applicant, sets out the following material information:

   Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), the visa holder has not been enrolled in a registered course of study since 18 September 2017.

9. A review of the applicant’s PRISMS record confirms the delegate’s conclusion in this regard.

10. When put to the applicant, she admitted in sworn evidence to the Tribunal that she was not enrolled in a registered course as alleged in the delegate’s decision record.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the Tribunal finds that 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

    Background

13. The applicant is a 20-year-old Zimbabwean national who first arrived in Australia on 17 January 2016 as the holder of a Student (subclass 573) visa.

14. The applicant’s PRISMS record shows that since her arrival in Australia she has successfully completed the following courses:

Course Name	Date Commenced	Date Completed
·     Certificate III in Community Services Work	01/02/2016	01/07/2016
·     Certificate IV in Community Services Work	18/07/2016	16/12/2016

1. PRISMS also records that the applicant had been on a study pathway towards a Bachelor of Social Science that she was scheduled to commence on 24 February 2018.  To this end she commenced a 12-month Diploma of Community Services on 30 January 2017, however her enrolment in that course was cancelled on 30 June 2017 for ‘non-payment of fees’.  The consequence of the cancellation of that course was the cancellation, on 18 September 2017, of her bachelor’s degree course.  The cancellation of her bachelor’s degree was the ‘trigger’ for the department’s cancellation of her student visa, which is the subject of the present application.

   Circumstances in which the ground of cancellation arose.

2. The applicant stated that she arrived in Australia as a 17 year old on 17 January 2016.  She stated that she was (and is presently) living with her sister, who is an Australia citizen, and her sister’s family.  She stated that her sister was to be her financial sponsor for the period of her studies in Australia.

3. She stated to the effect that the initial phase of her studies went well; she successfully undertook and completed her Certificate III in Community Services and her Certificate IV in Community Services across 2016.  She stated that in 2017 she commenced her studies for a Diploma of Community Services and successfully completed her first semester studies.  The applicant provided documentary evidence to the Tribunal in respect of her academic achievements up to and including the first semester of 2017.  The Tribunal finds this evidence persuasive and accepts the applicant’s submission that, for the first 18 months of her time onshore, she acted in accordance with her stated intentions and pursued her studies diligently and successfully.

4. The applicant’s evidence to the Tribunal is that her circumstances changed in the second semester of 2017.  Specifically, the applicant stated to the Tribunal that her sister was unable to continue her financial support for the applicant as she was experiencing “difficulties”.  The applicant stated that she, herself, was unable to cover the cost of her tuition fees as she was working in accordance with her visa conditions and was unable to earn enough to cover her fees.  She stated, however, that she continued to participate in those aspects of the course in which she could, including a work placement in Dunsborough in December 2017.[1]  She stated that the course provider was unable to allow her to fully complete the course, and award her a diploma, until her fee issues were resolved.

   [1] In respect of which she provided written evidence.

5. The applicant stated to the effect that she was unable to re-commence her studies in the first semester of 2018 for the same reason (lack of financial resources) and that her difficulties were compounded in mid-2018 when she suffered serious (though non-life threatening) injuries in a car accident.  The applicant provided that Tribunal with written evidence confirming the nature of her injuries.  Although the Tribunal is not convinced that her accident was a material cause of her breach of condition 8202 of her visa it accepts that her time recovering from it may understandably have distracted her from other aspects of her life and that it took her some time to refocus her energies.

6. Overall the applicant presented as a quiet, though confident young woman whose maturity appeared to be developing at a rate to be expected of a person who as a teenager, and now young adult, was living overseas without parents and under the care of her sister.  The Tribunal notes her successful academic progress to mid-2017 and considers that the concurrence of the financial strain suffered by her sister and the cancellation of the applicant’s diploma course at this time are not mere coincidence.  On balance the Tribunal is persuaded that the factors leading to the cancellation of the applicant’s visa were beyond her control.  Whether these events may have been better managed is a matter of conjecture with the benefit of hindsight. 

7. Accordingly, the Tribunal places some moderate weight on this factor in the applicant’s favour.

   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

8. The applicant stated to the Tribunal that wishes to change her study pathway from pursuing a bachelor’s degree in community services to achieving, instead, a bachelors in psychology.  When pressed by the Tribunal she stated that she made this decision because, from her researches, there are “not many opportunities” for social workers in Zimbabwe at present, but that there are opportunities in psychology as “mental health awareness is growing in Africa”.  The Tribunal does regard this as a “compelling” need, though it does disclose a reasonable motive.  In all of the circumstances, however, the Tribunal does not weigh this factor in the applicant’s favour.

   The extent of compliance with visa conditions

9. The applicant was responsible for a breach pertaining to her visa.  Her visa was granted on 11 January 2016 and, despite completing some of her studies, her course and her student visa were cancelled.  Ultimately it is for the applicant to take personal responsibility for managing her course requirements and visa obligations.  In all of the circumstances, however, the Tribunal gives less weight in this instance to cancelling her visa on account of the applicant’s particular circumstances.

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

10. The Tribunal accepts that the applicant and her family have invested financial resources in furthering her education in Australia, however she cited no particular hardships in her evidence to the Tribunal should her visa be cancelled.  The applicant’s evidence to the Tribunal is that she has recovered sufficiently from her car accident and is now well enough to continue her studies.  Moreover, her evidence is that her sister and brother-in-law have recovered sufficiently from their financial “difficulties” of 2017 and now have the facility, and intention, to re-new and continue their support of the applicant during her studies in Australia.[2] 

    [2] Evidence of the applicant’s access to financial support was provided to the Tribunal.

11. In all of the circumstances the Tribunal does not weigh this factor either in favour of or against the applicant.

    Past and present behaviour of the visa holder towards the department

12. The delegate noted the following in his decision record in respect of this factor:

    I give this consideration some weight in the visa holder’s favour as there is no evidence that they have been uncooperative with Department, or with Departmental staff.

13. The Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on 21 August 2018.  The delegate’s decision record notes that the applicant provided a written response to the NOICC on 25 August 2018.  In its material aspects the applicant’s response was consistent with her evidence to the Tribunal.

14. In the context of the whole of the evidence, including the manner of the applicant’s presentation before the Tribunal, the Tribunal is persuaded that the applicant’s prompt response to the NOICC is consistent with a willingness on her part to engage with the Department to resolve her breach of condition 8202 of her visa.  As with the delegate, the Tribunal weighs this factor slightly in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

15. There are no consequential cancellations under s.140; accordingly the Tribunal places no weight on this factor in the applicant’s favour.

    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

16. The delegate’s decision indicates that if the applicant’s visa were to be cancelled she would become unlawful and could be liable for detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, s.48 of the Act means that she will have limited options to apply for further visas in Australia.

17. There is nothing to indicate the applicant would not be able to return to Zimbabwe.  The Tribunal affords little weight to this consideration in determining whether to cancel the visa.

    Whether any international obligations would be breached as a result of the cancellation

18. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Conclusion

19. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant breached condition 8202 of her visa.  The Tribunal has found however that the circumstances in which the breach occurred, that is the financial strain of her sponsor in mid-2017, were beyond her control.   The Tribunal is persuaded that her successful academic progression until that time is consistent with the applicant holding a genuine intention and motive to study in Australia consistent with her obligations as the holder of a student visa.  The Tribunal places moderate weight on these circumstances and, when combined with the applicant’s recognition of her breach of her visa condition and her willingness to engage with the Department to resolve it, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Damian Creedon
    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.