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

1. 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).

2. 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. 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.

5. 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

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 (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?

7. On 1 July 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

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. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

10. In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a full-time registered course.

11. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

12. The information from PRISMS shows that the applicant was not enrolled in a registered course from 20 June 2022 to 4 February 2023. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 20 June 2022 to 4 February 2023 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

13. 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

14. 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.

15. 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

16. 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.      

17. 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

18. 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.

19. The applicant also provided:

    ·Authenticated Vocational Education and Training Transcript showing courses and outcomes for the applicant in 2023; and

    ·Imperial Institute of Sydney (undated) showing courses undertaken and grades achieved.

    Evidence provided at hearing

20. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of her enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from her PRISMS enrolment record, she was enrolled in the following courses of study:

    a.She was enrolled in a Diploma of Health Science which was cancelled on 2 March 2020 due to Deferment/Suspension -Compassionate or compelling circumstances;

    b.She was enrolled in a Bachelor of Nursing which was cancelled on 2 March 2020 due to Non-commencement of studies;

    c.She was enrolled in a Diploma of Health Science which was cancelled on 26 June 2020 due to Student left provider-transferred to another course provider;

    d.She was enrolled in a Diploma of Project Management which was cancelled on 25 February 2021  due to Non-payment of fees;

    e.She was enrolled in a Diploma of Mental Health which was cancelled on 3 November 2021 due to Unsatisfactory course progress;

    f.She was enrolled in a Foundation English 1 which she finished on 8 May 2022;

    g.She was enrolled in a Foundation English 2 which she finished on 19 June 2022;

    h.She was enrolled in a Diploma of Community Services which was cancelled on 2 April 2024 due to Non-payment of fees; and

    i.She was enrolled in a Diploma of Community Services which she commenced on 20 February 2023. The CoE was created on 26 April 2024.   

21. The Tribunal explained to the applicant that this information was relevant because it indicates that from 20 June 2022 to 4 February 2023 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering her purpose for remaining in Australia.

22. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comment in relation to her PRISMS enrolment record. The applicant told the Tribunal she disagreed with her PRISMS enrolment record in relation to the cancellation of her Diploma of Community Services enrolment on 2 April 2024 due to non-payment of fees. The CoEs before the Tribunal included:

    • Diploma of Community Services CoE cancellation document created on 2 February 2023 and updated on 2 April 2024 for a course start date of 20 February 2023; and
    • Diploma of Community Services CoE document created on 26 April 2024 and updated on 26 April 2024 for a course start date of 20 February 2023.

23. PRISMS showed the reason for cancellation on 2 April 2024 was non-payment of fees however the applicant disputed the cancellation. The reason for issuing a CoE for the same course on 26 April 2024 was unclear to the Tribunal however it accepts that the applicant was enrolled in a Diploma of Community Services on 2 February 2023 and has been undertaking study in this course since that time.

24. The Tribunal asked the applicant about the statement in the NOICC response that during the period of 20 June 2022 to 4 February 2023 her college only had internet classes and she didn’t receive the login username. The NOICC response stated that the applicant went to the college trying to get one but could not find an admin to help her. In response the applicant told the Tribunal that in May 2022 she went to Newcastle to help her cousin who was having a leg operation. She said her college was located in Sydney and before she left for Newcastle she told them she would not be attending classes. The applicant told the Tribunal that when she returned to Sydney in August 2022, she attended her college and was told to use Skype. She said when the college contacted her by Skype she requested help with a login and was advised that they could not help her because she did not have an active CoE.

25. The applicant told the Tribunal that when she went to Newcastle she told the college she was going to help her cousin. She said she did not receive a response from the college and did not follow it up because she “wasn’t thinking”. She said she believed the college had given her a break from study because she had told them she was going to help her cousin. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.

26. The applicant told the Tribunal that she did not receive written advice from the college that she did not have an active CoE when it was cancelled on 20 June 2022. Noting that she was aware of not having an active CoE from at least August 2022, the Tribunal asked her whether she contacted the Department to regulate her visa status. She said she did not contact the Department because she was not feeling okay due to concern for her father’s health. She said he suffered a spinal cord injury in 2007 and in 2022 he was diagnosed with lupus. She said her father’s health continues to worry her. The Tribunal referred the applicant to the statement in the NOICC response that in August 2022 her parents were not in good health and were worried about catching COVID-19.  In response she only referred to her father’s health issues of a spinal cord injury and lupus  and said her mother did not have any health issues. Following the hearing the applicant provided Republic of Kenya Medical Reports for her father dated in January, February and December 2022, May 2023 and May 2024. The reports refer to various diagnoses including lupus and the Tribunal accepts that the applicant’s father suffers from health conditions including lupus.

27. The Tribunal asked the applicant about the statement in the NOICC response that she    worried so much about her parents’ diseases that she became anxious and could not focus on studies. In response the applicant told the Tribunal that her cousin’s leg operation and her father’s ongoing health issues made her anxious because she felt she was not helping. In response to the Tribunal asking the applicant whether she sought assistance or treatment for her anxiety, she said in November 2022 she had an online session with a Beyond Blue therapist and in March 2023 she attended a psychologist. She said she had five sessions with the psychologist. The applicant told the Tribunal that the psychologist diagnosed her with suffering post-traumatic stress order caused by the trauma she experienced in the medical field when she was with her cousin in Newcastle and what she had experienced with her father’s health issues. She told the Tribunal she did not want to take medication for her anxiety because she felt she could pull through without medication.

28. The Tribunal asked the applicant about her study in 2020 and 2021, noting that PRISMS shows all her courses were cancelled including for non-payment of fees and unsatisfactory course progress. In response the applicant told the Tribunal that in 2020 and 2021 she wasn’t settled enough to attend school.

29. The Tribunal asked the applicant how she financially supported herself during the period from 20 June 2022 to 4 February 2023. In response she said her sister provided financial assistance and she also worked to pay her rent and food expenses. She said she worked as an aged care support worker for 20 hours per week however the hours offered did fluctuate and she accepted whatever hours were offered. She said she continues in this role at the present time.

30. When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she came to Australia to acquire knowledge. She said she had originally wanted to obtain a Nursing qualification however she did not have the English language requirements. The applicant told the Tribunal that the Diploma of Community Services she is currently studying will enable her to help people. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said she found life in Australia stressful when she first arrived but she is now settled and wants to study. She said she has made friends who have helped her with her self-esteem and have told her she can do anything she puts her mind to doing.

31. When asked about the hardship that may be caused by cancellation of the visa, the applicant said she is the eldest of five siblings and if she returns to Kenya without a qualification her siblings will see her as a failure. She said if she returns without any qualification she will have nowhere from which to start her career.

32. The applicant told the Tribunal that she acknowledges her mistake and she has learned a lot since her visa was cancelled. 

33. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

34. The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of 7 months. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

1. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3] 

   [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

2. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, she said she is now settled in Australia and wants to study and that she has made friends who have helped her with her self-esteem. The Tribunal accepts that the applicant has a desire to remain in Australia because she feels settled but does not consider this constitutes a compelling need to remain in Australia.

3. The applicant’s non-engagement in the study for which her visa was granted, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.

   The extent of compliance with visa conditions

4. The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study for a period of 7   months. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

5. The applicant’s non-compliance for a period of 7 months weighs in favour of visa cancellation.

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

6. The Tribunal accepts that the cancellation of the applicant’s visa will likely cause her emotional hardship because her family will be disappointed. The Tribunal accepts that if she returns to Kenya without a qualification this may negatively impact on her career.

7. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

   Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

8. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 7 months. She told the Tribunal that until August 2022 she thought her college had given her a break from study because she had notified the college that she would not be studying while she was in Newcastle with her cousin. Her evidence was that when she notified the college of her plan she did not receive any response from the college and did not follow one up. As noted, in the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.

9. The applicant told the Tribunal that from August 2022 she was aware she did not have a current CoE. She said she did not contact the Department because of her anxiety. She described having a diagnosis of post-traumatic stress disorder dues to medical trauma arising from her father’s and her cousin’s medical conditions. The applicant said she attended an online therapy session in November 2022 and five sessions with a psychologist from March 2023. There is no medical evidence before the Tribunal regarding a diagnosis or treatment of anxiety or post-traumatic stress disorder during the period on non-enrolment or at any time. There is no medical evidence before the Tribunal in relation to the applicant’s claimed inability to focus on her studies due to her anxiety and post-traumatic stress disorder during the period of non-enrolment or at any time. In those circumstances, the Tribunal does not accept that these conditions were so severe that the applicant was unable to study.

10. The applicant told the Tribunal she did not contact her education provider about deferring her study and did not contact the Department about her change in circumstances. She said she believed her education provider had given her a break when she went to Newcastle. However she was aware from August 2022 that she was no longer enrolled in study. She said she did not contact the Department because she was not feeling okay due to concern for her father’s health. As noted, there is no medical evidence regarding the nature or severity of the applicant’s claimed mental health conditions. The applicant’s evidence was that she continued to work during the period from 20 June 2022 to 4 February 2023. She said the hours fluctuated and she accepted whatever hours were offered. The applicant maintained employment during the time she ceased to be enrolled in a registered course. Therefore, despite her claimed anxiety and post-traumatic stress disorder, the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder.

11. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 20 June 2022 to 4 February 2023, initially because she ceased study to help her cousin and from August 2022, because she was unable to focus on her studies due to her claimed mental health conditions. The Tribunal finds that from at least August 2022, the applicant knowingly remained in breach of her visa conditions and did not contact her education provider or the Department to defer her study or change her visa status. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

12. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

13. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

14. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

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

15. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

16. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

17. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

18. 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

19. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Christine Kannis
    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.