Kinyanjui (Migration)

[2020] AATA 4218

Kinyanjui (Migration) [2020] AATA 4218 (6 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lucy Anne Njeri Kinyanjui

CASE NUMBER:  1921878

HOME AFFAIRS REFERENCE(S):          BCC2019/1653595

MEMBER:Wendy Banfield

DATE:6 October 2020

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2020 at 5:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – medical conditions and treatment – unverified claim of bullying by teacher and students – no approach to education provider – plans to resume study in different subject – hardship if visa cancelled – availability of treatment in home country – 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

1. This is an application for review of a decision dated 29 July 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 delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course since 20 December 2018 and therefore she did not meet the requirements of condition 8202(2)(a) attached to her Student 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.

   Background

3. The applicant is a citizen of Kenya and is currently 34 years old. She came to Australia to study a Diploma of Nursing and began the course as planned. The applicant experienced some difficulties due to medical conditions that required diagnosis and treatment. The applicant discontinued her primary course for this reason and was not enrolled to study for more than six months. The applicant has since re-enrolled in hospitality courses.

4. The applicant appeared before the Tribunal on 28 July 2020 to give evidence and present arguments.

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 comply with Condition 8202?

7. 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)

   ·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).

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

9. The applicant was not enrolled in a course of study from 20 December 2018 until 3 June 2019 when the Department issued a Notice of Intention to Consider Cancellation. The applicant did not dispute this period of non-enrolment had occurred but provided reasons regarding the circumstances. 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 the discretion to cancel the visa

10. 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 Procedural Instruction ‘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

11. The applicant travelled to Australia to study a Diploma of Nursing in 2017. She began the course and had been attending until she experienced problems as a result of medical conditions. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

12. Regarding a compelling need to remain in Australia, in the representative’s statement of 20 July 2020 it is claimed the applicant intended to maintain and engage in a fulltime registered course which included making enquiries about attending a course in Diploma in Massage but her attempts and willingness to comply with condition 8202(2) was hampered as a result of circumstances beyond her control. The applicant’s statement, also of 20 July 2020 indicates her medical issues are under control and she is planning to resume her studies. It does not directly address whether there is a compelling need to remain in Australia. During the hearing the applicant did address this issue and said she came to Australia to obtain further education but her medical misfortunes have been an obstacle to that goal.

13. The Tribunal considered the applicant’s submissions but is not satisfied she has demonstrated a powerful or convincing reason for needing to complete further study in Australia. The applicant held degree qualifications before she came to Australia and has changed her field of study from nursing to hospitality without adequate reason. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

14. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and has taken this into account. However, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

15. The representative’s submission of 20 July 2020 made several claims regarding hardship. It states the applicant will suffer financial, psychological and emotional hardship if her visa is cancelled. It was submitted the applicant has spent a lot of money on medical expenses in Australia and will face further financial difficulty if she is required to return to Kenya. This was said to be due to business closures and loss of employment because of COVID-19. In addition, her family in Kenya and brother in Townsville have supported her to be able to study in Australia. It was claimed the applicant has suffered hardship knowing fellow students have graduated and gone on to further studies or employment. The representative submitted the applicant would not have the same access to medical treatment in Kenya which is further complicated by COVID-19. It was claimed the applicant did not receive adequate support from her education provider in Australia when she was suffering difficulties due to her medical conditions.

16. During the hearing the applicant claimed she would suffer hardship if her visa is cancelled because it has been a privilege to study in Australia and her pursuit of a diploma course was affected by medical conditions. The applicant said having to return to her home country with nothing to show would be a burden. The Tribunal has assessed the evidence in this case and accepts the applicant would suffer a degree of hardship if her visa is cancelled. The Tribunal has afforded some weight in the applicant’s favour when assessing this criterion.

17. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if her visa is cancelled, however, the intended consequences of the legislation do not outweigh the other considerations in this case.

    ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

18. The applicant’s visa was cancelled because she remained in Australia as the holder of a student visa but did not maintain enrolment in a course of study, as required by the conditions of her student visa. In a written statement dated 7 June 2019 that applicant explained she had suffered a series of health problems since 2017. According to the applicant she was treated for medical conditions by her general practitioner and specialists and experienced difficult symptoms that affected her ability to attend to her studies.

    These two conditions had left me crippled from attending to my studies. My body had become incapable of sitting through a whole days class for 8 hours while it could not even be in a sitting position for fifteen minutes without excruciating pain that left me taking even more than ten minutes to get up from a sitting position due to the debilitating pain.

19. The applicant submitted medical evidence in support of her claims. In the representative’s statement dated 20 July 2020 it was explained the applicant’s enrolment in her course of study had been cancelled because of ongoing medical conditions but she had attempted to enrol elsewhere. However, her health complaints meant that for a period over 2018 and 2019 it was not possible for her to continue or restart her studies. Based on the evidence, the Tribunal accepts the applicant experienced some medical conditions as claimed.

20. At the Tribunal hearing the applicant explained that as well as her ongoing medical conditions, she had found the nursing course was different than expected and she was experiencing bullying by the teacher and students. She stated she had been required to redo certain aspects of her work but after lodging a complaint and meeting with a counsellor no satisfactory outcome was achieved. The applicant claimed that this, together with ongoing pain from her health condition clouded her judgement. The applicant did not submit verifiable evidence of having made a complaint or met with staff as a result of issues she experienced from her teacher and students. The Tribunal is unable to place weight on this claim when  assessing the circumstances in which the grounds for cancellation arose.

21. The Tribunal has assessed the evidence in this case and sympathises with the applicant having experienced medical issues while a student in Australia. However, the Tribunal is not satisfied the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to defer her studies or place them on hold while she sought treatment and management of her health conditions. It is the responsibility of visa holders to ensure they comply with conditions and it is not open to the applicant to remain in Australia while not being enrolled to study. Therefore, the Tribunal places very limited weight on the circumstances in which the ground for cancellation occurred.

    ·     past and present behaviour of the visa holder towards the department

22. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given some weight in the applicant’s favour in this regard.

    ·     whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

24. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit her options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.

    ·     whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

25. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

26. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

27. The Tribunal assessed the complete range of evidence provided in support of the application for review. This included all medical evidence, statements from the applicant’s family and friends attesting to her health issues and advocating for her to continue studying, written communications between the applicant and third parties and written submissions to the Tribunal from the applicant and her representative.

28. The applicant submitted a letter to the Tribunal dated 27 July 2020 expressing concern that her submissions in support of her application were late. The applicant was worried it would appear she did not care about her application and her submissions were disorganised as well as late. The Tribunal has not made any adverse findings against the applicant in this regard and has fully considered all the evidence provided in her case.

    Conclusion

29. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that most considerations weigh against the applicant. The Tribunal considers the length of time the applicant has spent in Australia having breached her visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant outweigh the grounds for the visa to be cancelled.

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

    DECISION

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

    Wendy Banfield
    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.