Kaonde (Migration)

Kaonde (Migration) [2019] AATA 3664 (31 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Maimbo Kaonde
CASE NUMBER:  1900095
HOME AFFAIRS REFERENCE(S):           BCC2018/4992391
MEMBER:T. Quinn
DATE:31 July 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 July 2019 at 10:44pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of time already onshore – circumstances giving rise to non-compliance – emotional stress – failure to take reasonable steps to maintain enrolment – significant breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
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 December 2018 made by a delegate of the Minister for Home Affairs (‘the delegate’) to cancel the applicant’s Subclass 500 (Student) visa (‘the current visa’) under section 116 of the Migration Act 1958 (‘the Act’).
The applicant has been in Australia since November 2011 on student (and associated bridging) visas as well as on a Postgraduate (subclass 485) visa and was granted the current visa on 23 February 2017.[1] The applicant is from Zambia and came to Australia with the intention to study and obtain skills in Australia in order to improve her employment prospects in her home country.[2]
[1] See delegate’s decision.
[2] See delegate’s decision.
On 20 December 2018, the delegate cancelled the current visa on the basis that the applicant had failed to comply with a condition of the current visa as required by subsection 116(1)(b) of the Act, namely that the applicant had not been enrolled in a registered course of study[3] since 19 January 2018. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
[3] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
On 2 January 2019, the applicant applied for a review of the delegate’s decision with this Tribunal pursuant to sections 338(3) and 347 of the Act.
The applicant appeared before the Tribunal on 29 July 2019 to give evidence and present arguments.
The applicant was assisted in relation to the review by their registered migration agent.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
The Tribunal has had regard to all the information before it, including the Department File, all information and evidence provided by the applicant to the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.
Under section 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 subsection 116(1)(b) of the Act. 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition requires that the applicant:
a.be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(1) and (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
c.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 registered course.
The applicant was enrolled in and commenced a Master of Business Administration (‘MBA’) in early 2017. The applicant’s confirmation of enrolment (‘COE’) was cancelled on 19 January 2018 and she was not enrolled in a full time registered course of study from that date until her visa was cancelled on 20 December 2018.
The applicant has at all times acknowledged and accepted that there are grounds for cancellation.[4]
[4] See delegate’s decision, submissions from the applicant and applicant’s evidence at hearing.
For these reasons, the Tribunal is satisfied that the ground for cancellation in section 116(1)(b) exists. As that ground does not require mandatory cancellation under section 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of 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’.
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 filed written submissions with the Tribunal on 26 July 2019, which included a copy of the applicant’s Response to the Notice of Intention to Consider Cancellation dated 7 December 2018, previously submitted to the Department (‘the Submissions’). This document indicated that the applicant commenced and completed a Diploma of Management and Bachelor of Business (Accounting) after her arrival in Australia in November 2011. She has provided copies of relevant certificates and academic transcripts to corroborate this evidence. The applicant’s evidence at hearing was that the purpose of her study in Australia was to further her career in her home country. Having completed her Diploma and Bachelor Degree, the applicant decided to apply to stay onshore on a Postgraduate (subclass 485) visa (‘the 485 visa’) so she could gain experience in her chosen field prior to returning to her home country. It was her written and oral evidence that she had difficulty obtaining such employment and ended up working in Administration at a TAFE for twelve months, rather than gaining experience in the field of business and accounting. Her written and oral evidence appeared to suggest that upon the expiry of the 485 visa she decided to enrol in an MBA to further assist her career. It seemed that she was submitting that because she failed to gain appropriate experience in her chosen field of study, she elected to undertake a higher study qualification to ensure she would return to Zambia with experience and qualifications that would together improve her career prospects. When asked why the applicant did not attempt to enrol with the study earlier, while still on the 485 visa, she said she thought she would be able to get a job during that time.
The applicant made submissions that her father worked in accounting and was her financial supporter and academic and professional guide.
The applicant now works part time in an aged care facility and has mentioned that a nursing qualification would be her ‘back-up’ course of study.
In the Submissions, the applicant included a document (at page 31) dated 22 July 2019 which appears to be her International Student Application Form seeking enrolment in a Graduate Diploma of Business Administration and MBA. In the section which asks ‘Main reason for undertaking course’ which has multiple options to select in answer, including ‘to get a job’, ‘to get a better job or promotion’, ‘I wanted extra skills for my job’, the applicant has not selected any of these options but instead selected the box which indicates her answer is ‘for personal interest or self development’. The Tribunal is troubled by this answer as it does not need seem consistent with the applicant’s claims that her purpose for studying is to improve her career. When the Tribunal raised this with the applicant, she stated that she wants to develop herself. The Tribunal is concerned that the applicant’s purpose in travelling to and staying in Australia may be motivated by factors other than study.
The applicant stated that if her visa is refused, she will have to return to her home country and it ‘might be a little bit hard’ because her parents always encouraged her and told her to make them proud and make something of herself. The applicant stated she needed to complete her studies to make her parents proud. The Tribunal understands that a visa cancellation can be disappointing for visa holders and their families but does not consider this constitutes a compelling need to remain in Australia. Further, the Tribunal notes that the applicant has received a Diploma and Bachelor Degree in Australia, has much to be proud of and will have options to complete further studies in Zambia.
The Tribunal accepts the applicant does wish to study but also notes that the nature of the student visa programme is necessarily temporary and after nearly eight years onshore, the Tribunal has concerns about the applicant’s true intentions. The Tribunal considers the applicant does not have any compelling need to remain in Australia as she could study an MBA in her home country. The Tribunal considers the evidence in favour of cancelling the applicant’s visa is greater than the evidence against cancelling the applicant’s visa in the matters described in paragraphs 19-24.
Circumstances in which ground of cancellation arose
The Submissions and the applicant’s evidence at hearing was that:
a.in early 2017, shortly after the applicant commenced her MBA, the applicant’s father become unwell with what was ultimately prostate cancer;
b.the applicant felt overwhelmed and found it difficult to study; and
c.the applicant attended upon Southern Cross University Health Clinic and has provided a letter dated 22 June 2017 in support of withdrawal without fail from her first semester in the MBA which stated the applicant has been under significant emotional stress affecting her ability to concentrate on her studies since April and recommends the applicant be permitted to re-do her Semester 1 units in Semester 2 ‘which Maimbo is prepared to do’. The period(s) of the illness or misadventure is listed as ‘Session 1, 2017’ with a severity of ‘Severe’.
The Tribunal empathises with the applicant and her family in relation to her father’s health issues. However, the applicant’s evidence was that she continued to work part time through this period, she did not return home to visit her family or father at all and that she did not reenrol in her MBA in Semester 2 as the abovementioned letter states she was prepared to do, or in fact at all.
The applicant was forthright in taking responsibility for her breach of her student visa and remorseful in this regard. This is to her credit. However, the Tribunal enquired as to whether she sought counselling or attended upon her General Practitioner at any stage in relation to her mental or emotional health and the applicant said that she did not. Submissions were made in relation to cultural differences in this regard. The Tribunal accepts there may be cultural differences but considers that in circumstances where the applicant availed herself of help in June 2017, indicating an intention to re-enrol in Semester 2 of 2017, it is reasonable to expect that the applicant ought to have taken more positive steps in relation to her situation in the second half of 2017.
The Tribunal enquired about whether the applicant attempted to re-enrol at any point and specifically why the applicant did not attempt to re-enrol in late 2017 or early 2018. The applicant simply stated she was overwhelmed, that she should have but was not coping. Yet she conceded she continued to work in her part time aged care job. The Tribunal was troubled by the applicant’s evidence and finds it difficult to accept that a person who genuinely wishes to study would continue to work part time on a student visa and make no attempt to re-engage with their study. This raises questions for the Tribunal about the applicant’s true intentions in residing in Australia.
The Tribunal is troubled by the applicant’s evidence as a whole. Despite the applicant’s emotional problems, it would seem that by at least late 2017, when she had previously indicated an intention to re-enrol in Semester 2 and was continuing to work, she had some capacity to make a request for a deferral of her course and/or make a proper attempt to re-enrol with her course. The Tribunal accepts that the applicant has had emotional turmoil in early 2017. However, it would seem the applicant would have had capacity to take steps to ensure she was complying with her visa conditions. She did not. On her own evidence, she did not seek counselling or medical help beyond one appointment with the University Health Clinic. Further, there is no medical evidence supporting the timing or symptoms and the impact of those symptoms beyond the first Semester of 2017 in order that the Tribunal can properly assess the full impact of the applicant’s emotional difficulties on her capacity to study. Indeed, the letter from the University Health Clinic supports a conclusion that by mid to late 2017, the applicant ought to have been able to properly engage with her studies. Given the applicant was able to work in 2017, the Tribunal has difficulty accepting that the applicant could not have engaged with her studies in some way or taken steps to ensure she was not breaching the conditions of the current visa.
In addition, the Tribunal also notes that the option to return to Zambia to avoid breaching her visa conditions was open to the applicant at all times and although she gave evidence that this was difficult financially as her father was ill and her sister had to support her financially, the Tribunal notes that the applicant was working and finds it difficult to accept that she could not have found a way to secure a one-way ticket to Zambia in order to support her family through this time and ensure she was not breaching her student visa.
The Tribunal empathises with the applicant’s personal circumstances in 2017, including the fact that her father’s health problems were out of the applicant’s control. The Tribunal acknowledges these issues must have caused emotional stress for the applicant and gives weight against cancelling the applicant’s visa in this regard. However, the applicant’s visa was not cancelled until December 2018, nearly two years after her father’s first health problems and the Tribunal considers that from at least late-2017, the applicant could have taken steps to ensure she was not breaching the conditions of the current visa.
Extent of compliance with visa conditions
The Tribunal notes the applicant’s evidence that she has otherwise complied with all previous student visa conditions and been a prudent student. However, the breach of the condition associated with the current visa is extensive, being eleven months and in fact, the applicant made no academic progress in the MBA at all for a period of nearly two years while continuing to reside onshore on the basis of a student visa. The Tribunal considers this a significant breach and gives weight in favour of cancelling the applicant’s visa in this regard.
The degree of hardship that may be caused to the visa holder and any family members
When asked about this factor, the applicant stated that if her visa is refused, she will have to return to her home country and it ‘might be a little bit hard’ because her parents always encouraged her and told her to make them proud and make something of herself. The applicant stated she needed to complete her studies to make her parents proud. Submissions were made in relation to the three year exclusion period outlined in paragraph 39 below.
The Tribunal accepts that the cancellation of a visa is disappointing. It also accepts that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study.
The Tribunal recognises that the hardship is felt by family members who may also feel let down and disappointed.
The Tribunal is, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition such as non-enrolment. Whilst appreciating the hardship the applicant and her family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight in its considerations.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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
If the current visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
The Tribunal gives little weight to this consideration in favour of the applicant because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
Australia’s international obligations
There is nothing before the Tribunal to suggest that the cancellation of the current visa would breach any international obligations. The Tribunal places no weight on this in favour of or against the applicant.
Any other relevant matters

Nil.
CONCLUSION
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 Subclass 500 (Student) visa.
T. Quinn
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

[2019] AATA 3664

31 July 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction