Kangogo (Migration) - [2024] ARTA 240

KANGOGO (MIGRATION) [2024] ARTA 240 (4 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Mercy Jepkemoi Kangogo
Respondent:  Minister for Home Affairs
Tribunal Number:  2314827
Tribunal:General Member David McCulloch
Place:Sydney
Date:4 November 2024
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 04 November 2024 at 10:25am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – discretion to cancel visa – non-compliance conceded – death of mother and mental health and counselling – no response from first agent and engagement of second – attempts to re-enrol before notice of intention received, and current enrolment – partner now studying in Australia, and young child born during return to home country – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b), (1A)
Migration Regulation 1994 (Cth), r 2.43A, Schedule 2, condition 8202(2)(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant failed to be enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant is a citizen of Kenya. The visa that has been cancelled was granted on 12 August 2022 for a stay period until 30 August 2023.
The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) on 18 July 2023. The applicant responded to the notice.
The applicant appeared before the Tribunal on 22 October 2024 at 9.30 am to give evidence and present arguments. The Tribunal also received oral evidence from Mr Towett Titus, the applicant’s partner.
The hearing occurred by video using Microsoft Teams. The applicant appeared from Kenya to where she had returned on 25 December 2023. Mr Titus appeared by Teams from Sydney.
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
Under s (1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that a visa holder has not complied with a condition of the visa. However, the Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: ss 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
There are currently no prescribed circumstances under s 116(2) requiring the visa not be cancelled, or under s 116(3) requiring the visa to be cancelled, that apply.
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 Regulations. If satisfied the applicant has breached condition 8202, the decision-maker must proceed to consider whether the visa should be cancelled under s 116(1)(b). In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and reg 2.43A, and other matters of government policy.
Did the applicant comply with condition 8202?
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).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course from 15 August 2022 until 21 July 2023. In the hearing, the applicant agreed with this period of her non- enrolment.
On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of discretion
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the power to cancel the visa should be exercised. For temporary visas other than criminal justice and enforcement visas, there are prescribed matters to which the decision-maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations. The prescribed matters are set out in the attachment to this decision.
Beyond the matters prescribed under reg 2.43A, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s policy guidelines ‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’, which refer to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose; whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non‑refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen (and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
A written submission on behalf of the applicant was provided in response to the NOICC. This extracted a written statement by the applicant providing explanations for non‑enrolment. Supporting documents were provided, being the applicant’s mother’s death certificate and the applicant’s Kenyan education documents.
The extracted explanations by the applicant follow (unedited):
Just a month after I arrived in Australia, I lost my mother back home in sept 13 2022. Words are not enough to describe the experience. I was numb, shaken and paralysed. For weeks, I could not get out of bed. I could not eat; I couldn’t even talk.
None of the people around me at the time understood how I felt. It felt even worse that I could not attend my mother’s funeral. Travelling back to my country for the funeral would cost me a lot of money. I had already spent so much travelling here and on school fees. My family and friends back in Kenya tried to fundraise for my travel but they couldn’t raise enough money to cater for both my travel and my mother’s funeral. I became suicidal. Things got worse when I learnt through my cousins that my relatives were already planning to take over the property left behind by my family. Other relatives claimed too that I didn’t respect my mum enough to attend her funeral. It hurt to hear such when I was already grieving.
In the middle of my grieving, I tried to keep in touch with the agency that secured my admission to Australian Catholic University. The agent I used never picked my calls. I never heard from the University too. I keep on checking my email for updates for orientation and when classes would begin. Nothing. To this date, I have never heard nor received any communication from the university nor my agent.
I still couldn’t talk to anyone about what I was going through. I come from a culture where you never talk about your feelings. You are supposed to be a ‘strong’ woman. Hold it in and it will fade away with time. You’re allowed to cry for a day or two then move on.
My fiancé, who was still in Kenya as all the aforementioned events were unfolding, did everything he could to help me. He organized for counselling sessions online. I hated the online therapy at first but he insisted that I attend. He promised to attend the sessions with me but I couldn't allow her to. Mental health to me was not something you fixed by talking to someone. This is what I always knew because in my country people are just left to grieve on their own. I just wanted to grieve and be left alone. I reluctantly agreed to try the online therapy which he paid for.
Weeks into the session, I could feel some progress. I learnt shortly after the first few sessions that I was clinically depressed. I was going through trauma. I learnt how the experience can make life unbearable. I understood now why I felt angry all the time even to people who only wanted to help.
As all these was happening, I was also trying to adjust to the Australian way of life. Everything was different here. Everything was fast paced. The people I thought I could look up to were all busy with school and work. A few would call. Some would stop by for just a few hours. I felt all alone. Eventually, I started going outside. I could sit in parks trying to come to terms with what was happening around me. I listened to music, attended church and even tried to jog in the morning as my therapist had suggested. All these things were hard at first.
Back in Kenya, my fiancé was already making plans to travel to Australia. Even though he always wanted to study here, I hated the fact that he was travelling under unpleasant circumstances. I felt guilty that he was helping me so much while he had his personal issues to deal with. He was at the time, going through a divorce. How could I be so selfish? He assured me though, that he was okay.
By the time my fiancé got here, things were a little better. I was not on my feet yet but I had made progress. I hated the fact that my mother never got to see the man I had fallen in love with. This disturbs me sometimes but I have since accepted the experience as part of life.
By June this year, I had gotten much better. I had in fact, together with my fiancé, looked for an agent to help me find a school. This again was not easy but I eventually found a school and enrolled myself at UBSS. I can now go through daily chores much better than I when I first learnt of my mother’s demise. My fiancé, has also been very supportive. I do not know how my life would have unfolded had he not been here. The therapies, which I still attend saved me. I feel alive again.
I now wish to be given a chance to study. This would mean so much to me.
This tragedy really disturbed me. I was depressed and my life was terrible I felt like my life was meaningless and even thought of committing suicide this is the worst feeling that I wouldn’t even wish my enemy to go through. I contemplated going back home but thinking that my mother isn’t there really made me feel terrible, I had no one to talk to I had no friends or relatives to talk to in Australia. My fiancé who was back in Kenya tried to get me a guide and counsellor to help me and this was not easy at first because it was my first time doing a grief therapy. Sometimes I could not even attend the sessions. Adjusting to the new country became a problem to me due to my grief and the fact that everything here was different from my country. I tried sometimes to push myself but I ended up in my depression mood.
I plead for another chance to finish my master’s degree at UBSS. Going back home without my mother and my masters will devastate me. Notably, I had already secured admission at UBSS by the time I heard from home affairs.
In the hearing the applicant indicated that she became pregnant in Australia in July 2023. Her fiancé, the father, Mr Titus, indicated that he was in Australia on a student visa and had completed a Graduate Diploma and was currently studying a Master of Social Work which is due to be completed in 2026. He indicated that he is currently top of his class in performance in the Masters degree.
After the hearing, evidence was provided of Mr Titus obtaining on 8 October 2020 a Graduate Certificate in Human Services. The statement of results provided indicates Mr Titus gained two high distinctions, one distinction and one credit in the four units undertaken. Provided also is evidence of Mr Titus currently undertaking a Master of Social Work that commenced on 16 September 2024 due to be completed on 21 August 2026.
It was indicated in the hearing by both the applicant and Mr Titus that there were a combination of difficulties that resulted in them not resolving the situation of the applicant not being enrolled in a registered course from her arrival in Australia in August 2022. In fact, the enrolment in the Master of Information Technology had been cancelled before the applicant’s arrival in Australia.
It was indicated that difficulties included the fact that the agent in Kenya had provided an incorrect email address of the applicant to the education provider meaning that correspondence from them was not received by the applicant.
The applicant indicated that she physically attended the education provider on two occasions but could not locate the administration area. The applicant indicated that she did not otherwise send emails or correspond with the education provider.
The Tribunal put to the applicant plausibility concerns that the applicant would travel to the education provider and not be able to locate the administration area to discuss her issues. It is also undermining of her claims that the applicant did not proactively seek to correspond with the education provider.
Having said that, the Tribunal in the hearing was persuaded from evidence of the applicant that there were later attempts to rectify the applicant’s enrolment status including through obtaining the services of another agent located in Australia.
The Tribunal is satisfied that there were attempts made to re-enrol prior to the applicant receiving the NOICC.
The Tribunal accepts emotional difficulties suffered by the applicant as a result of the death of her mother which created some difficulties for her in promptly rectifying her visa status. The Tribunal is satisfied that at the urging of her fiancé she did undertake online counselling with a therapist located in Kenya.
The Tribunal is satisfied from the evidence of both the applicant and Mr Titus in the hearing that the applicant has a genuine desire to recommence in Australia originally desired studies at the Masters level.
The Tribunal accepts some extenuating circumstances resulting in the applicant’s failure to enrol in a registered course. However, the Tribunal has difficulty in being persuaded that they fully justify the applicant’s failure to be enrolled for the lengthy period of 11 months.
However, an overarching issue in this case is the fact of the applicant’s relationship with Mr Titus, who is currently in Australia, but the applicant and the child of the relationship are in Kenya. The child was conceived in Australia but given birth to on return to Kenya.
It was indicated in the hearing that the decision was made for the applicant to return to Kenya to have the child because of significant difficulties with the pregnancy.
The Tribunal is satisfied on the evidence that Mr Titus is a genuine student in Australia and is making good progress. In the hearing he indicated that he is a barrister and is also undertaking work for NGOs, and that when he finishes his social work degree in 2026 he will return to Kenya to progress with his career.
Although he indicates there will be a hardship, he indicated that he is committed to finishing his studies and would remain in Australia to finish his course without his partner and child if her visa remains cancelled.
The Tribunal accepts very significant hardship to both the applicant and Mr Titus if the visa remains cancelled in terms of the separation of the family unit.
Evidence was given that there is the desire of the applicant and Mr Titus to marry in 2024, which the Tribunal accepts.
In summary, the Tribunal is satisfied that there were some extenuating circumstances for the non‑enrolment but they do not fully justify the applicant’s non-enrolment for a period as long as 11 months such as to determine, without more evidence, to not exercise the discretion to cancel the visa. What tips the balance in this case to deciding that the visa not be cancelled is the Tribunal’s belief of the genuineness of the applicant’s desire to study in Australia combined with her relationship with Mr Titus, having had a child, with the applicant and the child now being separated from Mr Titus. The Tribunal considers very significant hardship to the family unit if the applicant’s visa remains cancelled resulting in separation for a not insignificant period between the applicant and her child and the child’s father.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
Date(s) of hearing:  22 October 2024
ATTACHMENT – Extract from Schedule 8 to the Migration Regulations 1994 (Cth)
…
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.
ATTACHMENT – Extract from reg 2.43A of the Migration Regulations 1994 (Cth)
2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition
(1)This regulation applies in relation to a visa if:
(a)     the visa is a temporary visa other than:
(i)a criminal justice visa; or
(ii)an enforcement visa; and
(b)     the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition) to which the holder’s visa is subject; and
(c)      regulation 2.43B does not apply in relation to the visa.
(2)For the purposes of paragraph 116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph 116(1)(b) of the Act:
(a)     any written certificate issued by a certifying entity that is a government entity if the certificate:
(i)was issued in relation to the visa holder in respect of a workplace exploitation matter; and
(ii)sets out the matters agreed to by Immigration and the government entity;
(b)     any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that:
(i)there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and
(ii)if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter—that time has not expired; and
(iii)there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected;
(c)      whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(d)     whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa;
(e)      whether the visa holder has committed, in writing, to do both of the following:
(i)to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject;
(f)      whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph (e) of this subregulation, or paragraph 2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa.
(3)Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
(a)     paragraph 116(1)(b) of the Act for non compliance with a condition (other than the relevant condition) to which the visa holder’s visa is subject; or
(b)     a provision other than paragraph 116(1)(b) of the Act.
Note:For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.