Kiarie (Migration)

[2020] AATA 3206

Kiarie (Migration) [2020] AATA 3206 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lanet Nduta Kiarie

CASE NUMBER:  1912509

HOME AFFAIRS REFERENCE(S):          BCC2018/5428997

MEMBER:D Triaca

DATE:13 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 13 March 2020 at 11:50am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – study at lower level than visa requirement – cancellation of enrolment in lower-level course – financial issues – pregnancy and childbirth – partner’s injury – partner and children Australian citizens – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 May 2019 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).

2. The Applicant is a citizen of Kenya and is and is 34 years old. She seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 7 November 2019 cancelling his Subclass 500 student visa pursuant to s 116(1) of the Migration Act 1958 (Cth) (‘the Act’).

3. The applicant appeared before the Tribunal to give evidence and present arguments on 12 March 2020.

4. The Applicant’s visa was granted on 19 April 2017. It was granted because a delegate of the Minister had determined that she met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

5. The visa had an original expiry date of 7 March 2020 before it was cancelled. It provided for nearly three years during which the Applicant would be permitted to reside in Australia for the purpose of full-time study.

6. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, the delegate found that the Applicant had failed to comply with that condition of the visa which required her to maintain enrolment in a registered course of study that, once completed, would 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 had been granted.

7. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

8. The delegate’s reasons are set out in a decision record. A copy of that record was provided to the Tribunal by the Applicant when he lodged his review application on 20 May 2019 (delegate’s decision).

9. The first issue requiring consideration by the Tribunal is whether the ground for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

10. The Tribunal has concluded that the delegate’s decision ought to be affirmed and the applicant’s visa is cancelled.

    GROUND FOR CANCELLATION

11. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

12. Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa.[2] It requires the visa holder to maintain enrolment in a registered course of study that, once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.

    [2] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).

13. The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course and the depth of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.[3]

    [3] The AQF is administered by the Department of Education and Training. See generally <>

    The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ‘downgrading’ to a simpler course. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

    Has the Applicant Failed to Comply with Condition 8202(2)(b)?

14. The delegate’s decision record notes that the applicant was granted a Student Visa on 19 April 2017 on the basis that she was intending to study a diploma of Hospitality Management and Bachelor of Hospitality Management. On 23 May 2017 her enrolment in both of these courses was cancelled by the education provider. On 11 August 2017 the applicant obtained enrolment in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management. These enrolments were at AQF Level 4 and 5. Accordingly, the applicant has not complied with condition 8202(2)(b) as she did not maintain enrolment in a registered course sin relation to which her visa was granted.

15. The Delegate’s decision notes that the applicant’s enrolment in her Certificate in Commercial Cookery Course and her Diploma of Hospitality Management were cancelled on 12 February 2019 due to non-commencement of studies.

16. In her evidence before the Tribunal, the delegate confirmed that once her enrolment in the Bachelor level course was cancelled in or about May 2017, she did not re-enrol in a course of equivalent AQF level. Rather, she sought to enrol in the lower level Certificate course. Accordingly, the Tribunal finds that the applicant was in breach of condition 8202(b) for a period of approximately 2 years at the date of the delegate’s decision.

17. As the delegate’s decision record notes, the Applicant’s visa was originally granted on the basis that the Applicant was enrolled in, and would successfully complete, a Diploma of Hospitality Management commencing on 30 January 2017 and concluding on 31 December 2017 and a Bachelor of Hospitality Management commencing on 5 February 2018 and concluding on 31 December 2019. The Bachelor’s course, being the higher-level course of the two courses for which the visa was granted, sits at AQF Level 7.

18. As the delegate’s decision record further notes, on 23 May 2017  the Applicant’s enrolment in the Diploma and Bachelor of Hospitality Management was cancelled by the course provider. The Applicant then enrolled in a Certificate IV in Commercial Cookery, commencing on 5 October 2018 and finishing on 14 April 2019, and a Diploma of Hospitality Management, commencing on 29 April 2019 and finishing on 29 September 2019. The Certificate IV course sits at AQF Level 4 while the Diploma course sits at AQF Level 5.

19. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[4] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued.

    [4] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

20. The delegate found that the Applicant had breached Condition 8202(2)(b) of his visa because he had downgraded her enrolment from an AQF Level 7 course to an AQF Level 5 course.

21. The Department wrote to the Applicant by letter dated 11 February 2019, notifying her of its intention to consider cancelling his student visa (‘the NOICC’). The NOICC set out particulars of the matters that have been summarised above and put the Applicant on notice that the Department was concerned that she may be in breach of Condition 8202 of her visa. The Applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.

22. The Applicant responded to the NOICC in writing on 26 February 2019 and 1 March 2019 (‘the Applicant’s NOICC response’). In that response, the Applicant disputed that she was in breach of Condition 8202 of his visa as alleged, stating that her intention was “to start my Education again from the beginning because I did not receive any qualification at my previous University and I wanted to focus more on commercial cooking. The requirement was to start with the certificate courses then Diploma and I was in between applying for a degree program with CQ University which would be my higher education program.”

23. However, at the hearing of the application, the applicant did not dispute the fact that she was in breach of the student visa. Her evidence was that her enrolment in the Bachelor course was cancelled in or about May 2018. She did enrol and commence studying in the Certificate IV in Commercial Cookery in 2018 and that she did not complete that course. She said that she had not studied since 2018 in any form.

24. Accordingly, based on the evidence, the Tribunal finds that it is reasonably clear that the Applicant was in breach of her visa as alleged by the delegate. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(b) of her visa.

    CONSIDERATION OF DISCRETION TO CANCEL VISA

25. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

    Relevant Factors

26. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

27. The matters that ought to be considered are specifically listed in PAM3 as follows:

    (a)    the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

    (b)    the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

    (c)    the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

    (d)    the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

    (e)    the Applicant’s past and present behaviour towards the Department (e.g. whether they have been truthful and co-operative in their dealings with the Department);

    (f) whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

    (g)    whether there are mandatory legal consequences arising from a decision to cancel the visa;

    (h)    whether Australia has obligations under any relevant international agreements that would be breached as a result.

    Applicant’s Evidence

28. The Applicant’s evidence in relation to her studying in Australia is as follows. She hopes to become a Chef and dropped down to a lower level course, being the Certificate IV in Commercial Cookery in 2018. She commenced studying that course but did not complete it. Her enrolment in the Certificate IV in Commercial Cookery course and her Diploma of Hospitality were cancelled on 12 February 2019.

29. The applicant’s evidence is that she did commence studying the Certificate in Commercial Cookery course. The delegate’s decision asserts that her enrolment was cancelled due to non-commencement of studies. On balance, I accept that the applicant did commence the Commercial Cookery course. I also accept her evidence that she ceased studying that course during 2018. Regardless of whether she studied at any level in 2018, on any view she was not enrolled in a course at the higher AQF level and was in continuous breach of the conditions of her student visa during this time.

30. The applicant states that she ceased studying in 2018 for two reasons. First, because she became pregnant in 2018. Secondly, she was unable to pay her course fees. She provided the Tribunal with a copy of her [child]’s birth certificate confirming he was born at [Suburb], in the State of Victoria, on [Date]. She has subsequently given birth to another child who is 2 months old.

31. She says that she hopes to return to study but is not in a position to do so now. She hopes to return to study in Hospitality related courses at the start of 2021.

32. She explained that she has had a difficult time of the last few years. Her partner, an Australian citizen was injured in a work accident and has a pending WorkCover claim. She and her family survive on Centrelink payments. She no longer cares for her sister’s children who are referred to in the delegate’s decision. She states that her mother cares for those children.

33. On the evidence before the Tribunal, the Tribunal has concluded that the delegate’s decision should be affirmed for the reasons that follow. The Tribunal notes that the applicant has, on all accounts, had a difficult time and may be in a position to seek advice on her possible visa options, noting that her Partner and children appear to be Australian citizens. However, on all the evidence, it is reasonably clear that the applicant is not a student, has not been a student for some time and is unlikely to become a student in the short to medium term. In circumstances in which she has lived in Australia for a lengthy period whilst in breach of her student visa and has not provided any evidence of academic progress since the visa was granted in 2017, the Tribunal concludes that the applicant’s visa ought to be cancelled.

    Purpose of Applicant’s Stay in Australia

34. There is no evidence to suggest that the applicant’s purpose was not studying when she arrived in Australia.

35. However, it is clear that since about 2018 her purpose in Australia has not been studying. To the contrary, it seems relatively clear on her own evidence that her purpose has been raising her family.

36. Her evidence was that she would not be in a position to return to study until at least the commencement of 2021, which is some time away. Accordingly, it seems on any view her purpose is no longer studying and is not likely to be the case for some time.

37. The Tribunal regards the applicant’s non-compliance with Condition 8202 as serious. The breach went on for a significant period of time must be assessed. As discussed below, the breach of Condition 8202 on this occasion was largely attributable to the conscious decision-making processes of the Applicant. The Applicant chose to downgrade her enrolment in 2017 and on her own evidence is at least 9 months away from contemplating a return to study. At this time, she will not be in a position to cure the breach, but will return to a lower level Certificate course. The reality is that the applicant has had since 2017 to make some progress towards the completion of a Bachelor’s degree and has failed to do so. There does not seem much point in allowing the applicant to remain in Australia for the purpose of study when she does not have any intention of studying this year, and if she does return to study it will not be at the level she was given a visa to study.

38. In her evidence, the applicant also made it clear that she was experiencing financial issues that had made it difficult for her to pay fees associated with study. Her Partner has suffered and injury and is unable to work. Given her family obligations, it does not appear she is able to work in any capacity in the near future. She says that she is surviving on Centrelink. In the circumstances, the Tribunal is not confident that the applicant will be in a financial position to return to study for a considerable period of time.

    Circumstances Giving Rise to Ground for Cancellation

39. The applicant’s evidence is that due to financial reasons and her family commitments she dropped down to a lower level course and ultimately dropped out of studying completely. She has not engaged in any form of study since 2018 and does not intend to return until 2021.

40. These matters may explain the applicant’s breach, but do not excuse it. It seems that the applicant’s priorities were simply elsewhere at the relevant time. Whilst I accept that circumstances such as her partner being injured may be regarded as “outside her control”, the Tribunal does not consider that the applicant downgrading her course and subsequently ceasing to study can sensibly be attributed to matters outside her control. Maintaining an appropriate enrolment and paying course fees is a fundamental requirement of the student visa. Whilst circumstances may lead to plans changing, once her enrolment was cancelled, the applicant had a considerable period of time in which to attempt to resolve the situation and re-engage with study. She did not do so.

    Applicant’s Compliance with Visa Conditions

41. Aside from the breach of the visa conditions that led to the cancelation of the applicant’s student visa, there is no evidence that the applicant has otherwise failed to comply with visa conditions. Whilst it may appear that the applicant has also breached her visa conditions by failing to make academic progress, there is no actual evidence on this point and the Tribunal does not make adverse findings against her in this regard.

    Hardship

42. The applicant has expressed a desire to study in Australia and become a Chef. She does not appear to require a Bachelor’s degree to fulfil this wish.

1. The Tribunal acknowledges that the applicant is facing a difficult situation. Cancelling her student visa is likely to result in some degree of emotional hardship and disappointment and upheaval for her family. She has two children that are Australian citizens and says she is seeking advice in relation to a Partner visa.

2. However, the reality is that she is simply not a student. She has not studied for a significant period of time and it seems that this situation will remain the case for some time.

   First Applicant’s Behaviour towards Department

3. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

   Other Visa Holders

4. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

   Legal Consequences

5. The Tribunal notes that if her visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting her options to apply for further visas from within Australia. She will also be subject to a three-year exclusion period where she will not be eligible to have any temporary visa application approved if she applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

6. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow her to make arrangements to depart Australia. If she applies for a Partner visa, which seems likely, she could apply for a Bridging E visa to allow her to remain in Australia and await the outcome to that application. She is a citizen of Kenya and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

7. The Tribunal notes from her evidence that the applicant has some uncertainty in relation to her family situation in the event that the visa is cancelled. She says that her Partner would not wish her children to return to Kenya with her. There is no evidence to indicate that there is any real prospect of the applicant being separated from her children in the event that her student visa is cancelled. If these matters cannot be resolved between the parties, it may require a resolution in another forum.

   International Obligations

8. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case. As stated above, the Tribunal does not consider that there is any evidence to suggest that the applicant’s children are likely to be separated from her.

   Other relevant matters.

9. The Tribunal notes that the applicant had a previous visa cancellation on 16 August 2016. The Tribunal set aside this decision on 3 February 2017 and substituted a decision not to cancel the visa. Accordingly, this previous cancelation has no bearing on this application and the Tribunal has given it no weight.

   Conclusion

10. In all the circumstances, the Tribunal is satisfied that the applicant’s visa ought to be cancelled.

    DECISION

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

    D Triaca
    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.