Kimani (Migration)

[2019] AATA 3036

Kimani (Migration) [2019] AATA 3036 (15 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Arianna Wambui Kimani

CASE NUMBER:  1709778

HOME AFFAIRS REFERENCE(S):          BCC2017/1213933

MEMBER:Mark O'Loughlin

DATE:15 May 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 15 May 2019 at 9:25am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 572 Vocational Education and Training Sector – not enrolled in registered course – medical issues – changed courses – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained her enrolment in a registered course as required by 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. The applicant appeared before the Tribunal on 16 October 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Grace Wainina, a friend of the applicant. 

4. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant fail to comply with Condition 8202?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it imposes an ongoing requirement that the applicant be enrolled in a registered course: 8202(2).

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The applicant gave evidence, supported by written submissions made by her representative, that she went to Kenya in August 2016 and that at about that time her enrolment was cancelled.

10. The applicant provided a copy of an email from Southern Cross Education Institute dated 2^nd August 2016 which relevantly reads:

    “I am informing you that you have been cancelled from your Dip of ECEC course due to outstanding fees. Your cancelled CoE is attached below.”

11. Attached to that email was a certificate of cancellation of the applicant’s confirmation of enrolment.

12. The applicant does not say that she was enrolled in any other courses at that time.  There is no evidence before the Tribunal to suggest that she was.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 2^nd August 2016 and 27 April 2017 when her visa was cancelled. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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’.

15. The Tribunal had regard to the submissions and supporting documents provided to the Department and to further submissions and supporting documents provided to the Tribunal in September 2018, January 2019 and at the hearing.

16. The applicant gave evidence that she came to Australia on the 25 April 2014 to study a Certificate IV in Business at the Southern Cross Education Institute Pty Ltd. The tribunal finds that she completed that course then completed a Diploma of Business which she did between 17 November 2014 and 17 May 2015. 

17. She gave evidence, which the Tribunal accepts, that she decided to start a Diploma in Early Childhood Education- again at Southern Cross Education Institute.

18. She was granted the subject Subclass 572 Vocational Education and Training Sector visa on 20 August 2015. 

19. She said that at the time she was granted the subject visa she intended to do a 2 year diploma in early childhood education and then do a 4 year Bachelor of Social Work at Uni SA.

20. She said that if all had gone well she would now be due to complete that study in the middle of 2021.

21. The applicant gave evidence, which the Tribunal accepts, that at some point after the 16^th of August 2015 she found out that she was pregnant. It was not a planned pregnancy but it was welcomed by her and her then partner.

22. She gave evidence that not long after she found out that she was pregnant she suffered a miscarriage.

23. The applicant had provided records from the Women’s and Children’s Hospital. They suggest that the miscarriage was on or about the 18^th or 19^th of October 2015.  The precise dates are not important for the purposes of this application.  The Tribunal notes that the estimated gestation period of 9 weeks and 1 day is consistent with the applicant becoming pregnant on the 16^th August 2015.

24. The applicant gave evidence that her course in Early Childhood Education started on 14 October 2015, which is 6 days earlier than suggested by her representative, but again the precise dates are not very important.

25. What is relevant is that her miscarriage occurred at the beginning of her course in Early Childhood Education and the Tribunal so finds.

26. The applicant gave evidence that before the miscarriage she had started vomiting and passing out randomly.  She said that that could happen as often as 3 times per day.

27. She said that she did not miss school in the time before the miscarriage.  The Tribunal notes that her school may not have started by then, or if it had it had only been going for four or five days.

28. She did say that she had been working in aged care up to the 20 hours per week allowed by her visa and that she had noticed in the time before her miscarriage she was very tired and rarely able to work her full 20 hours.  The Tribunal accepts her evidence about this.

29. The applicant said, and the Tribunal accepts, that after the miscarriage she started to miss classes.  She said that she suffered from exhaustion and low iron.  She said that she took iron supplements for 6 months but that they did not help and her joints began to swell.

30. The Tribunal further accepts her evidence that in November and December of 2015 she was feeling discomfort and reduced her work to 15 hours per week.

31. She said that she was still able to attend classes which were not physically demanding.  The Tribunal accepts this evidence.

32. She said that she fell pregnant again in January 2016

33. The applicant told the Tribunal that the hospital said she had a swelling in her abdomen and could not keep the baby.

34. She gave evidence that the second pregnancy was terminated in March 2016 at 12 weeks.  A letter from the Family Advisory Unit of the hospital and a certificate of sickness suggest that the second pregnancy was terminated on Thursday 17 March 2016 and the Tribunal so finds.

35. The applicant gave evidence that she had continued to attend classes as the Southern Cross Education Institute would not give her leave.  She did stop her work at the aged care facility.

36. In submissions to the Department on the 6^th of April 2017 (resent on the 7^th and 11^th April 2017) the applicant said that she had started to come into conflict with the school because of low attendance and failure to pay fees.

37. She also said in those submissions that the pressures involved in attending and paying for her course were too much in combination with the pregnancy and that she and her partner decided to have the pregnancy terminated.

38. The applicant gave evidence that after the termination in March 2016 the swelling in her joints got worse and it became painful to walk.  She said that she had checkups over April to July 2016 and that going to school was too difficult.  The Tribunal accepts this evidence.

39. She said that her health did not improve and that in late July 2016 she returned to Kenya to visit her family.

40. She gave evidence that during the time she was in Kenya the swelling in her joints improved and that she attributed that to an improvement in her diet.

41. She also said that she believed that she had been suffering from depression and anxiety because of the pregnancies.

42. She said that that depression and anxiety also improved while she was in Kenya.  She attributed that improvement to some courses that she did through her church.

43. There is a letter from Elia Musasizi dated 13^th July 2018 that was provided to the Tribunal by the applicant’s representative. Elia Musasizi is apparently the Lead Pastor of the Ressurection Center Church.  That letter suggests that the applicant was introduced to the church office on 14 August 2017 and that she was given help with a depression disorder. 

44. The Tribunal notes that the applicant said that she was in Kenya in August 2016 and that the reference to 2017 is probably an error. Further the Tribunal notes that Elia Musasizi does not purport to be a relevantly trained medical expert.  The Tribunal does not find that the letter proves that the applicant suffered from depression at any time.

45. The applicant said that a pastor from Uganda prayed for her in mid-November 2016 (by which time she had returned to Australia) and that that her mental health improved.

46. Her evidence, which the Tribunal accepts, was that her school in Adelaide had arranged for a psychological assessment and possible treatment with an organisation called “Headspace” but that she did not attend the appointment because she was in Kenya and by the time she got back she had felt better which she attributed to the courses at church while she was there.

47. The effect of this is that the applicant did not have any medical evidence to present to the Tribunal in support of her claims of having suffered from depression or anxiety.

48. After the hearing the applicant did provide a letter dated 22 October 2018 from her cousin Esther Mugo, a social worker, who advises that the applicant told her that she suffered from depression as a result of traumatic events. 

49. Ms Mugo identified the relevant traumatic event as “Something tragic” that happened in the applicant’s past and led to the loss of her only older brother.

50. Ms Mugo asserts that as a result of traumatic events the body reacts differently but suggests that the applicant has been proactive in seeking support.

51. There is no evidence of any such support sought by the applicant in respect of her alleged condition of depression or anxiety.  The Tribunal does not find that Ms Mugo’s note is helpful in this regard.  As a social worker Ms Mugo is not obviously qualified to diagnose a medical condition but in any event she does not purport to do so.  She merely reports that the applicant disclosed that she suffered from depression.

52. The Tribunal is not satisfied that the applicant was diagnosed with depression or anxiety but finds that she was experiencing difficulties including a change in mood until about November 2016 and that this probably interfered with her study until then.

53. The Tribunal accepts the applicant’s evidence that she has not suffered from the problems that she describes as “depression” and “depression and anxiety” since November 2016.

54. The applicant gave evidence, which the Tribunal accepts, that when she returned to Australia she decided that Early Childhood Education was too difficult for her from an emotional perspective having lost 2 babies. 

55. She had decided to transfer to a course in disability studies.

56. She gave evidence that she did not want to start a University course when she had anxiety and depression and was still suffering from swelling in the joints.  She also said that she had been affected by the breakup of her relationship with her long term partner and that September 2016 was a difficult month. 

57. She told the Tribunal that she didn’t enrol in the diploma in disability because her health was unsettled.

58. She said that she was still going for tests and that the process of investigating her illness led her to the Rheumatology department of the Royal Adelaide Hospital and that she received a diagnosis of auto immune arthritis in November 2017.

59. The applicant said that the auto immune arthritis causes her problems walking and that she can feel every joint in her body going stiff.  She said that it improves a little with the warmer weather but that if it gets too hot she swells up again.

60. She also said that at this stage she had not had any treatment for it.  She provides no evidence in support of the diagnosis save possibly for a blood test of 8 March 2017 which the Tribunal finds is inconclusive.  There is a report of 1 August 2017 from a Consultant Rheumatologist, Mr Leslie Cleland, who attaches a summary of observations and recommendations which says “Unable to exclude inflammatory arthritis” and suggests paracetamol and walking.

61. The applicant does not say that she has a prognosis for her condition.

62. Her evidence is to the effect that she did not want to start study during the period from September 2016 when she returned to Australia until about March 2018 when she received the letter of offer from Alphacrucius College to start a Bachelor of Business and a Bachelor of Theology, a course expected to last from 6 August 2018 to 17 June 2022,

63. The Tribunal observes that although the applicant’s representative had purported to provide a confirmation of enrolment in relation to that course, none was attached to his letter of 24 September 2018.  The applicant was asked at the hearing to provide the confirmation of enrolment referred to and in January 2019 provided a document indicating that the applicant was due to start her study on 4 March 2019The Tribunal observes that the applicant now professes herself to be ready to start studying although there has not been much change in her physical condition and there has been no treatment for her condition.

64. The Tribunal further observes that she does not now complain of anxiety or depression since November 2016.

65. The only change in the applicant’s circumstances during the 12 months from November 2016 is that in November 2017 she received a diagnosis of autoimmune arthritis.  The applicant’s evidence is that this diagnosis has not yet led to any course of treatment.  The Tribunal has no evidence that there was such a diagnosis in November 2017 but accepts that she has suffered from some joint pain and that she was told to use paracetamol and walk to treat it.

66. The Tribunal observes that on the applicant’s unsupported evidence, there was nothing to prevent her from studying during the period after November 2016 until the cancellation of her visa on 27 April 2017.

67. There is no evidence to suggest that she investigated a return to study until about March 2018.

68. The Tribunal finds that there is no medical evidence to support her complaints of anxiety and depression following the terminations of her pregnancies in late 2015 and March 2016.  The Tribunal accepts the applicant’s evidence to the extent that she says she was upset but does not find that she was diagnosed as suffering anxiety and depression. 

69. There is no evidence that original purpose of the applicant’s travel to Australia was not for the study.

70. The applicant has provided a letter of offer for a Bachelor of Business and Bachelor of Theology at Alphacrucis College, which letter is dated 28 March 2018.  That course was due to start on 6 August 2018.

71. Since the hearing the applicant has provided the Tribunal with confirmations of enrolment for a Bachelor of Theology and a Bachelor of Business.  These documents suggest that she was due to start the Bachelor of Theology on 4 March 2019 and finish it on 19 November 2021 then start the Bachelor of Business on 7 March 2022 and finish it on 25 November 2022.

72. This suggests that the applicant did not start the Theology course on 6 August 2018.  It is not clear whether the applicant had study rights under her bridging visa at that time.

73. There is no evidence that the applicant was enrolled in any other courses between 2^nd August 2016 and the cancellation of her visa on 27 April 2017.

74. The applicant says that she needs to stay in Australia for a further period of about 3 ½ to 4 years to complete further study.

75. The applicant says that if she does the further study she can take over her Father’s church when she returns to Kenya.

76. It is not clear whether she can do that without the qualifications or whether she can train in Kenya to do that. 

77. The Tribunal notes that in the submissions made to the department in April 2017 the applicant was proposing to study fashion design and marketing and pursue a career in fashion. 

78. In her evidence she said that she no longer wants to do that course as she does not believe she needs to.

79. The Tribunal notes that the applicant’s current proposed course is a substantial departure from the study she was previously doing.  Although it is understandable that an applicant may wish to change career goals the Tribunal notes that the applicant claims to have enrolled in a course in August 2018 without actually pursuing it and is not satisfied that the applicant intends to work in the church in Kenya.  Further, the applicant did not suggest that she requires the further qualifications for which she has provided a letter of offer.

80. As regards the applicant’s compliance with other visa conditions, the Tribunal has no evidence of any breach and does not accord this consideration any weight in favour of cancelling the visa.

81. The Tribunal accepts that the cancellation of the applicant’s visa would cause her some degree of emotional hardship as she wishes to return to Kenya with more extensive qualifications than she has.  The Tribunal accords this factor limited weight against cancelling the visa.

82. There is no evidence of financial, psychological or other hardship that the applicant would suffer if the visa is cancelled.

83. In relation to the circumstances in which the cancellation of the visa arose, the Tribunal observes that the grounds for cancellation arose on 2 August 2016 when the applicant’s enrolment was cancelled.

84. It may be that the applicant had compassionate reasons for allowing that cancellation to occur and to that extent the Tribunal does not accord this consideration significant weight in favour of cancelling the visa.

85. The obligation under 8202 to be enrolled in a registered course is an ongoing obligation.  The Tribunal has found that even on the applicant’s best case there was no reasonable explanation for her to not to re-enrol after November 2016 until the time of the visa cancellation if she wished to continue studying.  The Tribunal accords that consideration substantial weight in favour of cancelling the applicant’s visa.

86. In submissions dated 24 September 2018 the applicant’s representative asserted that the circumstances of the lapse of the applicant’s enrolment were beyond her control.  Even if that is the case the Tribunal finds that it was within the applicant’s capacity to resume study by the end of November 2016 at the latest.

87. The Tribunal therefore allows this consideration no weight against cancelling the visa. 

88. There is nothing in the evidence before the Tribunal to suggest that the applicant has engaged in behaviour towards the Department that should count in favour of cancelling the visa.

1. There is nothing in the evidence before the Tribunal to suggest that if the applicant’s visa is cancelled there will be consequential cancellations under S 140 of the Migration Act and the Tribunal accords this consideration no weight in considering this application.

2. The Tribunal finds that if the applicant’s visa is cancelled she may become an unlawful non-citizen and liable to detention and removal to Kenya.  This may represent a hardship to the applicant but is an ordinary consequence of cancellation of a visa and there is no evidence that it represents a particular hardship to the applicant.  The Tribunal accords this consideration little weight in considering this application.

3. The Tribunal finds that the applicant will be restricted in her ability to make further visa applications to Australia but is not satisfied that there is anything about the applicant’s circumstances that means that this will represent a significant hardship to the applicant and does not accord this consideration significant weight against cancelling the visa.

4. The Tribunal finds that there is no suggestion of indefinite detention of the applicant and accords this factor no weight against cancelling the visa.

5. There is no evidence or suggestion that any international obligations, including non-refoulement and best interests of children would be breached by the cancellation of the applicant’s visa.

6. The applicant’s representative has made submissions arguing that the discretion to cancel the visa should not be exercised where the visa holder’s default is due to circumstances beyond the visa holder’s control.

7. As a general expression of the principles that is correct but the Tribunal finds that even on the applicant’s own evidence there is a period from November 2016 until the cancellation of her visa during which she was not restricted from enrolling to study by circumstances beyond her control.

8. The Tribunal is therefore not satisfied that these submissions should move it to elect not to cancel the visa.

9. The applicant’s representative further submitted that the fact that the applicant has changed her courses and proposed courses of study should not count against her.  The Tribunal does not count the changes of course as weighing in favour of cancelling the visa.

10. The Tribunal further heard evidence from Grace Wainaina who is also studying and who met and became friends with the applicant through the Kenyan community in Adelaide.

11. She supported the applicant’s evidence of anxiety lasting until about November 2016 and of physical difficulties relating to extremes of temperature and stress. 

100.   The Tribunal accepts Ms Wainaina’s evidence as observations of some difficulties that the applicant had but the evidence is not, and does not purport to be, expert evidence on these matters.

101.   Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Mark O'Loughlin
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.