JERUTO (Migration) - [2024] AATA 2912

JERUTO (Migration) [2024] AATA 2912 (20 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms MERCY JERUTO
CASE NUMBER:  2306739
HOME AFFAIRS REFERENCE(S):          BCC2022/5708465
MEMBER:Christine Kannis
DATE:20 July 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 20 July 2024 at 2:45pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – significant breach – purpose of visa not fulfilled – no extenuating circumstances – mental stress – medical conditions of family members – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 5 May 2023 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).
The delegate cancelled the visa on the basis that the applicant failed to comply with 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 8 July 2024. The Tribunal hearing was conducted with the assistance of an interpreter in the Swahili and English languages.
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
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?
On 1 July 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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).
The requirements of condition 8202 do not allow…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JERUTO (Migration)

Details

AGLC: JERUTO (Migration) [2024] AATA 2912
Case: [2024] AATA 2912
Decision Date: 20 July 2024

CaseChat Overview and Summary

This matter concerned the review of a decision by the Department of Home Affairs to cancel the applicant's Student (Temporary) (Class TU) visa, subclass 500. The applicant, Jeruto, had been granted the visa to study in Australia. The Department initiated cancellation proceedings on the grounds that the applicant had failed to comply with visa condition 8202(2)(a) by ceasing to be enrolled in a registered course for a period of approximately five months. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether to exercise its discretion to cancel the visa.

The Tribunal first considered whether the ground for cancellation under s 116(1)(b) of the *Migration Act 1958* (Cth) was established. This required determining if the applicant had failed to comply with a condition of her visa, specifically condition 8202(2)(a) which mandates enrolment in a registered course. The Tribunal then had to consider whether to exercise its discretion to cancel the visa, having regard to the circumstances of the case, including the applicant's explanation for her non-compliance and any mitigating factors.

The applicant contended that her non-compliance was due to compassionate and compelling circumstances, namely severe mental stress and anxiety stemming from her parents' ill health in Kenya. She also explained difficulties with online enrolment and a college break. While acknowledging the applicant's stated difficulties, the Tribunal found that the ground for cancellation was established. In exercising its discretion, the Tribunal weighed the seriousness of the breach against the applicant's circumstances. Despite the applicant's submissions regarding her intention to return to Kenya and contribute to the community, the Tribunal concluded that, on balance, the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Class TU visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Class TU visa.Christine KannisMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.Consideration of the discretion to cancel the visa 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’, as set out below. On 3 April 2023, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 20 June 2022 to 4 February 2023 and had therefore failed to comply with condition 8202(2)(a) of her visa. Response to NOICC On 18 April 2023, the applicant responded to the NOICC via her migration agent and provided the following information: The applicant has been studying since she came to Australia and is now studying at the International Institute of Sydney Pty Ltd. During the period 20 June 2022 to 4 February 2023 the applicant’s college only had classes via internet. The applicant said she didn’t receive the login username and she went to the college to get one but could not find an admin to help her. In August 2022, the applicant’s parents in Kenya were not in good health. They were worried about catching COVID-19. The applicant worried about their diseases and had anxiety, poor sleep and emotional distress. She could not focus on studies. Around 15th December 2022, the college had a Christmas break until February 2023. Meantime, the applicant’s parents’ health were covering. She felt relaxed, her anxiety disorder improved and she felt much better. After Christmas break, she started study at the International Institute of Sydney Pty Ltd on 20 February 2023. When she received the NOICC the applicant was surprised and realized it was her fault not going to college even if she was sick at the time. She needed to let the college know her situation. The applicant came to Australia on student visa to study. She abides by the conditions of the student visa except for the period 20 June 2022 to 4 February 2023 (excluding Christmas period, actual time is 5 months). The applicant needs a student visa to allow her to continue her study. So the grounds for cancellation does not exist. At the time of responding to the NOICC the applicant provided the following documents: CoE for Diploma of Community Services created on 3 February 2023; and. Imperial Institute of Sydney Assignment submission/Grades for applicant (undated)Additional evidence provided prior to the hearing Written submission by the applicant which included the following:The sole reason for my non-compliance was due to compassionate and compelling circumstances. As I previously informed the department, my failure to maintain enrolment was a result of the severe mental stress I experienced due to the health conditions of my parents back in Kenya. From the time of my arrival in Australia, I have consistently maintained my enrolment and have particularly maintained and progressed in my studies since February 2023. Despite the period of concern, I have successfully maintained and advanced in the Diploma of Community Services, the course of study in which I am currently enrolled. I fully acknowledge that I should have maintained my course progress during the period of concern. Unfortunately, I was unable to do so due to the mental distress I was experiencing at that time. I would like to emphasize that I need this visa more than ever, as I am very close to completing the DCS by February 2025. However, my previous course, CHC52015, has been superseded by CHC52021. Consequently, I received an updated Confirmation of Enrolment (CoE) from my college, which now extends to July 2025. My course record from my college student portal shows that I have completed 10 units out of 20 If allowed to complete this course, I assure you that I intend to return to my home country, Kenya, with this qualification. In Kenya, there is a growing demand for skilled professionals in the social and community services sector. Completing my Diploma in Community Services from the Imperial Institute of Sydney will equip me with the necessary skills and knowledge to contribute meaningfully to this sector. Specifically, I plan to work with non-governmental organizations and community-based initiatives to support vulnerable populations, such as children, the elderly, and those affected by health and socio-economic challenges. My training will enable me to design and implement effective community programs, provide counselling and support services, and work towards improving the overall well-being of the communities I serve. This qualification will significantly aid me in starting a career in the social/community service sector in Kenya, allowing me to make a positive impact and contribute to the development and improvement of my community.