Jepchumba (Migration)

[2022] AATA 4250

Jepchumba (Migration) [2022] AATA 4250 (2 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Peula Jepchumba

REPRESENTATIVE:  Mrs Navneet Kaur Walia (MARN: 1802602)

CASE NUMBER:  2004313

HOME AFFAIRS REFERENCE(S):          BCC2019/5022122

MEMBER:Gabrielle Cullen

DATE:2 November 2022

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 02 November 2022 at 12:00pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant didn’t maintain enrolment in a registered course of study – applicant did not comply with condition 8202– compelling need for her to stay in Australia – no similar course in Kenya and she is part way through the course – decision under review set aside

LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202(2)(b) which requires the visa holder (hereinafter referred to as the applicant) to maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted.

3. The Tribunal received an application for review of the delegate’s decision from the applicant on 4 March 2020. The applicant attached the Department’s Notification of Cancellation under Section 116 dated 3 March 2020  which indicates that on 14 February 2020 the Department notified and invited the applicant to comment on the intention to consider cancellation of her subclass 500 student visa on the basis that since 23 May 2018 when enrolment in the Bachelor for Science (Biomedical Science) was cancelled she  had not been enrolled in an AQF 7 course. The applicant did not respond to the Notification of Intention to Consider Cancellation.

4. The applicant provided detailed submission to the Tribunal prior to the hearing as outlined below.

5. The applicant appeared before the Tribunal via video on  2 November 2022 to give evidence and present arguments. The applicant was represented in relation to the application for review by her registered migration agent. Her representative attended the hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   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 (Cth) (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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant did not maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

10. The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree.

11. The applicant’s subclass 500 visa was granted on 23 November 2016 to study a package of courses leading to a Bachelor of Science (Nursing), a course with an AQF level of 7 at Edith Cowan University from 12 December 2016 to 11 December 2020. On  27 June 2017 enrolment in the Bachelor of Science (Nursing) was cancelled as the applicant changed enrolment. On 27 June 2017 the applicant obtained enrolment in a  Bachelor of Science (Biomedical Science) through the same education provider to commence on 30 July 2017; however, on 23 May 2018 enrolment in this course was cancelled by the education provider.[1]

    [1] As outlined in the Department decision attached to the Application for Review

12. On 10 September 2018 the applicant obtained enrolment in a Certificate III and Diploma of Early Childhood Education and Care, a course at the AQF 5 level. She has since been enrolled and studying a Bachelor of Community Services since 13 May 2021.

13. On the evidence before the Tribunal, the applicant’s visa was granted in relation to a Bachelor of Science (Nursing) which would have provided a qualification from the AQF that is level 7. Since then, the applicant enrolled in a further Bachelor of Science (Biomedical Science) but on 23 May 2018 enrolment was cancelled. She was then enrolled in a Diploma of Early Childhood Education course which would have provided a qualification from the AQF at level 5 while the holder of the student visa until she enrolled in the current Bachelor course on 13 May 2021. The Tribunal finds she was not enrolled in an AQF 7 course between 23 May 2018 and 13 May 2021. Accordingly, the applicant has not maintained enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. The applicant accepted at hearing she had not complied with condition 8202(2)(b) while the holder of her previous student visa.

14. Accordingly, the Tribunal finds applicant has not complied with condition 8202(2)(b). The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

15. 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’.

    Background

16. The applicant is a 27-year-old citizen of Kenya. She first arrived in Australia on a subclass 500 visa valid to 3 March 2020, the latter being the date of cancellation of her visa by the Department. She arrived to study a package of courses leading to a Bachelor of Science (Nursing). She successfully completed the tertiary access program and academic English program studied from 12 December 2016 to 29 September 2017.  On 27 June 2017 the applicant changed enrolment from the Bachelor of Science (Nursing) to Diploma of Science (Health Studies) from 21 October 2017 leading to a Bachelor of Science (Biomedical Science) but enrolment in the Diploma course was cancelled for non-payment of fees on 21 May 2018 and enrolment in the Bachelor of Science (Biomedical Science) was cancelled on 23 May 2018 for non-commencement of studies. At hearing the applicant indicated she ceased enrolment in the Bachelor of Science (Nursing) as she did not meet the required English level. She said enrolment was cancelled in the Diploma of Science (Health Studies) leading to a Bachelor of Science (Biomedical Science) as she could not afford the fees as her aunt at that time could not support her.

17. She then enrolled in a  Certificate III and Diploma of Childhood Education from 10 September 2018 to 20 December 2020 and the evidence indicates that she has successfully completed that course. She is now studying a Bachelor of Community Services commenced on 31 May 2021 and due to finish on 31 May 2024. She  has successfully completed 9/24 units or 37% of the course and paid $28,101 out of a total of $35,150 towards this and the associated childcare courses.

18. The applicant provided the documents from her education provider dated 18 October 2022 confirming the above as well as  a submission titled ‘Statement of Purpose’ and a submission from her representative dated 26 October 2022.

19. She also provided evidence of financial capacity from her aunt as follows

    ·Affidavit dated 26 Oct 2022 from the applicant’s Auntie Margaret Jemutai Rugut.

    ·Margaret Jemutai Rugut’s bank statement for period from 1 March 2022 to 26 October 2022.

    ·Letter from Kenya Dairy Board dated 26 October 2022 confirming Margaret Jemutai Rugut is an employee in the position of Managing Director.

    ·Kenyan ID of Margaret Jemutai Rugut.

20. The applicant also provided evidence at hearing as to why the visa should not be cancelled which were relevant is considered below.

    The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

21. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. The Tribunal accepts that the purpose for her travel to Australia was for study. It accepts her reasons why she did not continue with the Bachelor of Science (Nursing) and Bachelor of Science (Biomedical Science). It notes that since September 2018 she has been enrolled and achieving course progress and has successfully completed the Certificate III and Diploma of Early Childhood Education. It accepts she is currently enrolled and studying a Bachelor of Community Services, achieving course progress and has paid $28,101 towards this course and the previous Certificate III and Diploma of Early Childhood Education. The Tribunal accepts that the  purpose of the applicant’s stay in Australia is to study and complete her courses.

22. It accepts there is a compelling need for her to stay in Australia and complete the Bachelor of Community Services, particularly as it accepts her evidence that there is no similar course in Kenya and she is part way through the course.

23. The Tribunal gives this discretionary factor significant weight in favour of the applicant.

    The extent of compliance with visa conditions

24. There is no information before the Tribunal that the applicant did not comply with any other conditions on her visa.

25. The Tribunal gives this discretionary factor weight in favour of the applicant.

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

26. As the applicant is currently studying, the Tribunal accepts there will be a degree of hardship if the visa is cancelled due to the legal consequences as outlined below. It also accepts she will forgo the money spent on the Bachelor of Community Services course she is part way through and that she will be unable to complete any similar course in Kenya.

27. The Tribunal gives this consideration weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

28. The ground for cancellation arose because the applicant did not have the required English level to study the Bachelor of Science (Nursing) and then the funds to pay for the Bachelor of Science (Biomedical Science). The Tribunal accepts she is now studying at Bachelor course at the required AQF level 7 and achieving course progress.

29. The Tribunal attributes this weight in favour of the applicant.

    Past and present behaviour of the visa holder toward the Department

30. There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be any consequential cancellations under s.140

31. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. 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, 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

32. There are mandatory consequences in the case of the cancellation of the visa, including difficulties in obtaining any further visas.

33. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia, following the expiry of his current student visa. Under PIC 4013 she also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12. The applicant provided oral evidence to the Tribunal that she intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

34. The Tribunal gives this consideration weight in these circumstances as since the cancellation she has been studying and achieving course progress at the required AQF 7 level.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

35. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. 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. At hearing the applicant said she did not fear return to Kenya.

36. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

37. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

38. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are aspects that are significantly favourable to the applicant as outlined above

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

    decision

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

    Gabrielle Cullen
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.