Kipchumba (Migration)

[2019] AATA 3612

Kipchumba (Migration) [2019] AATA 3612 (16 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sylvia Jerotich Kipchumba

CASE NUMBER:  1718163

HOME AFFAIRS REFERENCE(S):           BCC2017/2098510

MEMBER:Mark O'Loughlin

DATE:16 August 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 16 August 2019 at 3:25pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – course enrolment – claimed financial hardships – received financial support – did not resume study – lost right to hearing – 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 11 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education 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 breached condition 8202 of her visa and the grounds for cancelling the visa outweighed the grounds for not cancelling it. 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 was invited to comment on or respond to information that would, subject to such comments or response, be the reason or part of the reason for affirming the delegate’s decision.

4. The invitation was sent to the applicant’s representative, who purported to withdraw from the file, although no notification was provided by the applicant. 

5. In the circumstances the applicant was contacted directly and the Tribunal is satisfied that the applicant was aware of the invitation and of the need to respond to it or lose her right to a hearing.

6. The applicant did not respond and so lost her right to a hearing.  The Tribunal proceeds using the information available to it.

7. The tribunal has regard to the following information that was provided by the applicant:

   a.Letter from Elizabeth Kibor to the relevant department dated 25 July 2017;

   b.Letter of support from Divine Orchestra Music Ministry, undated but sent by email dated 26 July 2017;

   c.Letter and enclosures from Melly and Company, Advocates and Commissioners for Oaths of 31 July 2017 and enclosures;

   d.Submissions from the applicant dated 3 August 2017; and

   e.Copy decision of the delegate of the minister dated 11 August 2017;

8. The Tribunal also received a letter from Divine Orchestra Music Ministry withdrawing its earlier support for the visa application.  That letter suggests that the applicant may have breached her visa but it does not provide any evidence of such breach and is unclear about the nature of the breach that the applicant may have made.  The Tribunal accords this letter no weight.

9. The Tribunal has had regard to PRISMS records and relies on them to the extent that they suggest that:

   a.The applicant’s enrolment in a Diploma of Health Science was cancelled on or by 13 August 2017 without her being awarded the Diploma;

   b.The applicant’s enrolment in a Bachelor of Nursing was cancelled on or by 13 August 2017 without her being awarded the Degree; and

   c.The applicant did not enrol in any other courses.

10. The Tribunal has also had regard to Movement Details and relies on them to the extent that they show that there has never been a visa condition imposed on the applicant that prevents her from studying.

11. The Tribunal relies on this information as suggesting that the purpose of the applicant’s travel to and stay in Australia was not to undertake study and that she has not pursued study despite telling the delegate of the minister in August 2017 that she was able and motivated to do so.

12. The Tribunal has not relied on any other documents on its file in coming to its decision.

13. 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

14. 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?

15. 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 registered course, or in limited cases, a full time course of study or training: 8202(2)

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

17. The Delegate’s decision suggests that the applicant had not been enrolled in a registered course since 4 November 2016.

18. That decision was made on 11 August 2017.

19. PRISMS records show that the applicant did not enrol in any courses after that time.

20. Therefore the applicant has not been enrolled in a registered course since 4 November 2016 and the Tribunal so finds.

21. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

22. 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’

23. On 3 August 2017 the applicant wrote to the Department saying that she came to Australia for the sole purpose of obtaining an Australian qualification.

24. The Tribunal notes that she has not been enrolled in a relevant registered course since 4 November 2016 and that she has not had a visa condition preventing her from studying at any point during this time.

25. The visa holder asserted in her submissions that she came to Australia to study.  She submitted that her family had been unable to support her financially and she did not have financial support until her aunt, Elizabeth Kibor, offered to take over the applicant’s financial support on 25 July 2017.

26. The Tribunal notes that the applicant did not resume study after this time and no reason was offered for her failure to do so.

27. There is nothing to suggest that the applicant’s travel to Australia was motivated by anything other than study.

28. The length of time that the applicant has remained in Australia without studying suggests that there may be another purpose for her stay here. 

29. The applicant’s breach of the condition that she be enrolled is over 2 ½ years which the Tribunal finds is lengthy.

30. The applicant has suggested that she and her family would suffer a range of hardships if her visa were cancelled.  She says that her career in Kenya will be compromised, that she would contribute to the financial stress on her family, and that she would be stressed and prone to depression  due to being unable to work in Kenya and depriving her family of their only remaining hope of avoiding further poverty.

31. The Tribunal finds that these submissions are not supported by evidence other than the applicant’s suggestion and further finds that the fact that the applicant did not pursue any further study suggests that these hardships were unduly speculative.

32. The ground of cancellation may have arisen by reason of the applicant’s father’s financial problems but the Tribunal is not satisfied that that is the case because the applicant did not return to study when that circumstance resolved.

33. There is nothing in the applicant’s behaviour towards the department that warrants the cancellatio of her visa.

34. There is nothing to suggest that the cancellation of the applicant’s visa will result in consequential cancellations under s.140.

35. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

36. She will need to apply for a bridging visa. She may become liable to detention under section 189 and to removal under section 198 if she does not get a bridging visa or leave voluntarily.

37. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean she will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

38. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

39. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

40. The Tribunal has weighed the considerations set out above together and finds that, although the applicant suggests that the ground of cancellation arose from matters beyond her control, the evidence about that and about the applicant’s motivation to study are not sufficient to outweigh the substantial breach of her visa condition.

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

    DECISION

42. 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.