Kamau (Migration)

Kamau (Migration) [2019] AATA 3108 (16 May 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Sharon Wangui Kamau
CASE NUMBER:  1821740
HOME AFFAIRS REFERENCE(S):          BCC2017/4031831
MEMBER:Christine Kannis
DATE:16 May 2019
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 16 May 2019 at 4:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 500 (Student) – not undertaking the study for which the visa was granted – no compelling reasons – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140, 362B
Migration Regulations 1994 (Cth), Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 20 July 2018 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 (the Act).
The issue in this case is whether the 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.
On 24 April 2019 the Tribunal sent the applicant’s representative an Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 6 May 2019 at 9.00 am.
On 24 April 2019 the Tribunal sent the applicant’s representative an email advising that the applicant’s consent was required in order for the hearing to proceed as the applicant had not been provided with at least 14 calendar days’ notice. A waiver form was attached to the email and it was requested that the waiver form be signed and returned as soon as possible.
On 30 April 2019 the Tribunal sent the applicant’s representative an email advising that if the signed waiver form was not received by close of business that day, the matter would be relisted an another hearing invitation would be sent.
On 30 April 2019 the Tribunal sent the applicant’s representative a new Invitation to Attend a Hearing letter (by email) which advised that a hearing had been listed for 16 May 2019 at 11.00 am. The letter informed the applicant that if she was unable to attend the hearing then she should advise the Tribunal as soon as possible. The letter advised that if she did not attend the hearing a decision may be made on the review without taking any further action to allow or enable her to appear before the Tribunal or that her application for review may be dismissed without any further consideration on the application and based on the information before the Tribunal.
On 2 May 2019 the applicant’s representative advised the Tribunal that the applicant and returned the signed waiver but had not included her name and date on the document.
On 3 May 2019 the Tribunal sent the applicant’s representative an email advising that the application had been relisted for 16 May 2019 because the signed waiver had not been returned within the requested timeframe.
On 9 May 2019 and 15 May 2019 the Tribunal sent the applicant a SMS hearing reminder to the phone number provided in the Application for review.
The applicant did not respond to the Invitation to Attend a Hearing.
The applicant failed to appear at the hearing and did not contact the Tribunal prior to the scheduled hearing to advise of an inability to attend.
The Tribunal is satisfied that the applicant has been given an opportunity to attend the hearing. The Tribunal noted that the applicant’s representative was in contact with the applicant with respect to her application and the hearing in or around 2 May 2019.
The Tribunal proceeds to make a decision in this case without taking any further action to allow or enable the applicant to appear before it as it is empowered to do under s.362B of the Act.
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
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b), that the Minister may cancel a visa if the Minister is satisfied that its holder has not complied with a condition of the visa. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Did the applicant comply with Condition 8202?
On 27 September 2016 the applicant was granted a visa in Subclass 500 (Student) with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202 requires primary student visa holders to maintain enrolment in a registered course, making it clear that this is a continuing requirement and that a student cannot change to a non-registered course. Clause 8202(2)(b) requires the holder to maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualification Framework (AQF)[1] that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.
[1] 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. See >
Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant was granted a Subclass 500 (Student) visa on the basis of her enrolment in a Bachelor of Nursing which is an AQF Level 7 qualification. PRISMS shows this enrolment was cancelled on 1 March 2017 and that the applicant subsequently enrolled in a Diploma/ Advanced Diploma course - AQF Level 3 and 5. Having regard to this information, the Tribunal finds that on 1 March 2017 the applicant ceased to be enrolled in a registered course that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which her visa was granted. The Tribunal finds that she breached condition8202(2)(b) of her visa.
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 in her response to a Notice of Intention to Consider Cancellation (NOICC), and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
As the applicant did not attend the hearing or provide written submissions prior to the hearing, the Tribunal relied on the information contained in the Department’s files including the Decision Record.
On 3 July 2018 the Department of Immigration and Border Protection issued the applicant with a NOICC because she had ceased to be enrolled in a specified registered course and was therefore failing to comply with condition 8202(2)(b) of her visa.
On 8 July 2018 the applicant responded to the NOICC and provided the following information:
·She was a previous student at the Murdoch Institute of Technology (MIT) who was offered a packaged deal in Nursing and had to leave due to financial and psychological stress which led to her taking a Certificate III/IV in childcare shortly after as a load off from what was happening around.
·She finalised her certificate course and was looking to pursue childcare which became an interest and was informed that the failed units incurred at MIT would not allow her to continue forward until they have been redone and a pass attained for them.
On 12 July 2018 a copy of an email from the Student Services Manager at MIT was received. The email advised the applicant that her previous studies at MIT was attempted at an AQF Level 5 and said they could not re-enrol her because she would still be in breach of her visa conditions. She was advised to contact her immigration agent for advice on how to proceed.
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
The applicant was originally enrolled in a Bachelor of Nursing which is an AQF Level 7 qualification.
The applicant was not enrolled in a registered course of study as required by condition 8202(2)(b) from 1 March 2017 and a period of 16 months elapsed from that date until the NOICC was issued. In her response to the NOICC the applicant said she had to leave Nursing and she then undertook child care courses. The child care courses were AQF Level 3 and 5.
The Tribunal decided that when the applicant left her Nursing course she was not engaging in study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia. She was granted her visa to study a Bachelor course and she ceased this study on 1 March 2017 and enrolled in lower AQF level courses.
Given the applicant’s failure to attend the hearing, the Tribunal is not aware of compelling reasons for her to remain in Australia.
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
There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in her favour.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
Given the applicant’s failure to attend the hearing, the Tribunal is not aware of any hardship which will result from cancellation of her visa.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
There was no evidence before the Tribunal to indicate that the applicant’s non-compliance with the visa condition was due to circumstances beyond her control or that there are any extenuating circumstances in this case.
In her response to the NOICC the applicant referred to financial and psychological stress as the reason for leaving her Nursing course however no evidence was provided to substantiate this contention.
Past and present behaviour of the visa holder towards the department
Nothing adverse is known about the applicant’s past and present conduct towards the Department. The Tribunal gives this some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. 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 he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant however finds in itself to not be sufficient to weigh in the applicant’s favour.
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
There is nothing to suggest that Australia’s international obligations would be breached as a result of the cancellation.
Any other relevant matters
The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.
Conclusion
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 is not fulfilling the purpose of her travel to and stay in Australia as she is not undertaking the study for which the 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 accepts that there is nothing adverse known about the applicant’s past and present conduct towards the Department.
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.
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.

[2019] AATA 3108

16 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Jurisdiction