Kiprop (Migration)

[2020] AATA 1383

Kiprop (Migration) [2020] AATA 1383 (13 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mercy Jepkoech Kiprop

CASE NUMBER:  1927069

HOME AFFAIRS REFERENCE(S):          BCC2019/2286648

MEMBER:Darren Renton

DATE:13 April 2020

PLACE OF DECISION:  Perth

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

Statement made on 13 April 2020 at 3:45pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – enrolments cancelled for non-commencement and non-payment of fees – discretion to cancel visa – intention to study – applicant’s and family’s financial circumstances – mother’s payment of one semester’s fees, not one year’s – applicant’s attempts to obtain funds – offer of financial assistance by employer – no attempt to seek deferral – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359A

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 18 September 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).  The applicant provided the Tribunal with a copy of the delegate’s decision.

2. The delegate cancelled the applicant’s visa on the basis that from 4 April 2019 the applicant was not enrolled in a course of study.  On that date the applicant’s enrolment was cancelled due to non-payment of fees.  As a consequence, the applicant breached condition 8202 of her visa by not maintaining enrolment in a full time registered course of study. 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 22 October 2019 to give evidence and present arguments.

4. 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

5. 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?

6. 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).

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

8. At the commencement of her hearing, the applicant accepted that she was in breach as set out by the delegate.  In light of that concession, only a brief outline of the relevant facts relevant to establishing the ground for cancellation is necessary.

9. The applicant enrolled in a Diploma of Science (Nursing) course to commence on 17 October 2016.  That course was to lead the applicant into studying a Bachelor of Science (Nursing).  After successfully completing the Diploma course in June 2017 her further studies were cancelled due to non-payment of fees.  Further, the applicant claimed that she was not given her Diploma as she had arrears of fees to settle.

10. According to the applicant’s evidence, she subsequently considered a Diploma of Community Service course as it was a cheaper option.  She told the Tribunal that it would lead to a Bachelor of Community Service.  The Diploma course commenced in January 2019, however, again due to insufficient funds and a failure to pay her fees, the applicant’s enrolment was cancelled on 4 April 2019.

11. Thereafter, the applicant claimed that she texted and emailed people in Australia to help her with her fees but was unable to secure any assistance until her employer offered to assist.  The applicant claims that she then attempted to re-enrol at Edith Cowan College in a Bachelor of Science (Nursing) but she needed to address an arrears of fees in excess of $12,000 before consideration would be given to her re-enrolling.

12. As at the date of the hearing, the applicant’s enrolment had not been resolved.

13. Based on the above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) pursuant to a breach of Condition 8202 exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    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.

15. 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’.

16. At the applicant’s hearing, the Tribunal’s process was explained to her including that the Tribunal had the discretion to consider relevant factors in deciding whether to cancel or not cancel the visa.  The Tribunal confirmed that the applicant understood the process and she provided answers to questions posed of her during the hearing.

    The purpose of the visa holder’s travel to and stay in Australia, whether the applicant has a compelling need to remain in Australia and the extent of compliance with her visa conditions

17. As noted above, and as set out in the delegate’s decision, the applicant initially came to Australia on a Subclass TU500 higher education student visa to study courses associated with nursing.  Having completed her Diploma of Science course on 2 June 2017, the applicant’s finances prevented her from successfully enrolling and progress her studies beyond that point.

18. As discussed with the applicant during the course of her evidence, while she enrolled in several courses following completion of her Diploma, she was never able to complete any of them as she simply lacked the finances to do so and each ended up being cancelled. 

19. The applicant accepted that since June 2017, she had not been able to study as required by her visa due to her financial circumstances.  While the breach giving rise to the cancellation of the applicant’s visa was based on her cancelled enrolment on 4 April 2019, the content of the applicant’s PRISMS records indicated the presence of gaps in her studies.  Those records relevantly indicated the following enrolments and cancellations:

    a.Diploma of Science (Health Studies) – completed between 17/10/16 and 2/6/17;

    b.Bachelor of Science (Nursing) – to be studied between 24/7/17 and 13/12/19 but cancelled on 29/6/17 due to non-commencement;

    c.Bachelor of Science (Nursing) – to be studied between 26/2/18 and 10/7/20 but cancelled on 9/11/17 due to non-commencement;

    d.Diploma of Community Service – to be studied between 12/2/18 and 20/12/19 but cancelled on 3/12/18 due to non-payment of fees; and

    e.Diploma of Community Service – to be studied between 2/1/19 and 20/12/19 but cancelled on 4 April 2019 due to non-payment of fees.

20. The Tribunal took the applicant through parts of the PRISMS records during the hearing and she agreed with their contents.  To ensure that the applicant was in no doubt about the significance of the PRISMS records, the Tribunal wrote to her subsequent to the hearing pursuant to s.359A of the Act, inviting her to comment or respond to the PRISMS records which indicated a lack of progress in her studies and numerous cancellations of her enrolments.  The Tribunal advised that the information in the PRISMS records was relevant to its consideration of the extent of the applicant’s compliance with her visa conditions, being one of the discretionary matters the Tribunal had to consider.

21. The applicant responded to the s.359A invitation and again confirmed that she acknowledged being in breach of her visa as alleged, although reiterated it was due to circumstances beyond her control due to a lack of finance.

22. While gaps in the applicant’s enrolments and studies are not determinative of the Tribunal’s considerations in relation to the extent of her compliance with her visa conditions, they are nonetheless relevant. The applicant accepted that she was aware of her visa conditions to be enrolled in an appropriate course.

23. In all the circumstances, the Tribunal finds that the extent of the applicant’s compliance with her visa conditions is a matter that weighs in favour of cancellation of her visa.

24. The applicant claimed that she wants to complete her nursing degree and gain qualifications as a registered nurse.  She further claimed that as she now has a financial sponsor to address her fees for the duration of the Bachelor course, she would like to be given the opportunity to complete them.  This suggests that one purpose of the applicant’s stay in Australia is to study.

25. The applicant told the Tribunal that if she was permitted to complete her studies and gain her nursing qualifications; her intention is to remain in Australia and work as a nurse.  She told the Tribunal that she is not looking to go home and would like to remain in Australia to work and thereby provide financial assistance to her younger sister in Kenya (8 years old) and mother.  This suggests that another purpose of the applicant’s stay in Australia is to work

26. Given the matters noted above, together with the applicant’s evidence concerning her future intentions, the Tribunal considers the primary purpose of the applicant’s stay in Australia is to work and not to study.  The Tribunal gives weight to the applicant’s stated intention to work in Australia following her studies and considers her studies to be the pathway by which the applicant hopes to achieve that aim.  Accordingly, the Tribunal gives this consideration weight in favour of cancellation of the applicant’s visa.

27. The Tribunal considers; however, that a compelling need arises for the applicant to remain in Australia in order to complete her studies and be able to provide financial assistance to her sister and mother. Accordingly, this matter is given weight against cancellation of the applicant’s visa.

    Circumstances in which the ground of cancellation arose

28. Some of the matters relevant under this consideration have been outlined above.

29. According to the applicant, when she received the Notice of Intention to Consider Cancellation (NOICC) of her visa, she responded by email within the prescribed time.  As is noted in the delegate’s decision, no record of the applicant’s response existed.

30. The applicant claimed that she could provide a copy of her NOICC response to the Tribunal following the hearing.  The Tribunal permitted the applicant to do so, together with email evidence she claimed to have regarding her employer being willing to pay her ongoing fees to enable her to complete the Bachelor of Science course.

31. The applicant subsequently provided the Tribunal with part of an email that suggested it was her response to the NOICC; however, the email did not contain the header portion to indicate to whom (or when) it was sent.  The applicant also provided other emails that provided some support for her having responded to the NOICC.  The Tribunal is satisfied that the applicant appears to have attempted to respond to the NOICC; however, based on the evidence before the Tribunal, it cannot safely be concluded that the applicant sent her email to the correct address.

32. Nevertheless, the applicant gave evidence that she arrived in Australia directly after having completed her secondary education in Kenya.  According to the applicant, her mother had sent her to boarding school during her studies as there was no one at home who could care for her while her mother worked; her father having passed away.

33. Without apparently consulting with the applicant, her mother arranged to send her to Australia to study, having selected a course for her and utilised a local agent in Kenya to attend to the visa application.  The applicant subsequently arrived in Australia with an understanding that her mother had paid a whole year of her tuition fees only to learn that it was just for the first semester.

34. The applicant told the Tribunal that she was concerned for how she would pay the fees as her mother had indicated that she could not provide any further financial support.  Her mother encouraged her to work hard and to find a way forward.  The applicant claimed that when she spoke with her mother about coming home, her mother would not let her, telling her that the people who had contributed to her fees would be disappointed. 

35. In answer to questions from the Tribunal, the applicant agreed that she was not well prepared for her studies; had limited awareness of her course and did not even know where Australia was.  She had almost no money and limited means to obtain it given her lack of work experience having only recently finished her secondary education.

36. The Tribunal asked the applicant whether she ever thought of going home when it was obvious she lacked the financial means to continue her studies.  The applicant said “no”, and that she managed to find limited work cleaning people’s houses to sustain her and part of her studies and that that was consistent with her mother’s message to work hard and find a way as others had. 

37. The applicant told the Tribunal that she would text and email people asking them for financial support and continued to do so until late in 2019 when her employer, Alpha Carers Australia, indicated they were prepared to assist.  Email correspondence supplied by the applicant post hearing, confirmed that her employer was interested in assisting her; however, there were caveats to that, including understanding how much the applicant’s fees were and whether her education provider would confirm her enrolment. 

38. The essence of the circumstances leading to the applicant’s breach was her lack of funds to continue her education.  This was not a sudden or recent event, but one with which the applicant had been contending with since arriving in Australia in September 2016.

39. As observed in the delegate’s decision, the applicant did not appear to have made any attempt to seek a deferral of her studies while she was experiencing financial hardship.  The applicant did not present the Tribunal with any evidence to the contrary of this and the Tribunal is satisfied that she did not seek a deferral.

40. At the commencement of the hearing, the Tribunal asked the applicant if she had read the delegate’s decision and understood the reason for cancellation.  The applicant indicated that she had and as noted previously, claimed she lodged a reply to the NOICC. 

41. The applicant did not give any evidence directly addressing why she did not seek a deferral. Further to the matters set out at [36] above, the applicant told the Tribunal that she understood the need to be enrolled as a condition of her visa and that she thought it was ok to remain in Australia while not studying because she was trying to get people to help her pay for her courses – she could not ; however, explain further why she thought it was “ok” to remain. On the basis of these matters and those in the preceding paragraph, the Tribunal is satisfied that the applicant was on notice that her failure to consider deferring her studies was a relevant matter in considering whether to cancel her visa.

42. In light of the above, while the Tribunal accepts that the applicant made attempts to obtain an alternate source of funds to pay for her studies once her mother was unable to assist her; those efforts were limited and had little real prospect of success in all the circumstances.  Simply contacting people in the hope they could help her financially for a period in excess of two years does not demonstrate a realistic attempt to obtain funds to progress her education. 

43. While the initial circumstances leading to her financial difficulties were somewhat beyond her control, thereafter the applicant took matters into her own hands in circumstances where it would have been obvious to her that she was not going to be able to secure sufficient funds. 

44. Accordingly, the Tribunal gives these considerations weight in favour of cancellation of the applicant’s visa.

    Degree of Hardship that may be caused

45. The applicant told the Tribunal that she has no other family members in Australia or anyone else in Australia that she had a responsibility towards.

46. The Tribunal asked the applicant what hardship would be caused by a decision to cancel her visa.  She told the Tribunal that if she went home she did not think her mother would take her back because she would think that the applicant did not work hard enough.  She further though she would have to live with her elderly grandparents. The applicant claimed that she had not spoken with her mother since advising her of the cancellation of her visa.

47. The applicant did not give evidence of any further hardship.  The Tribunal reminded her that the hearing was her opportunity to put before it anything that she wished to be taken into account in considering the review application. In the circumstances, the Tribunal is satisfied that the applicant had every opportunity to put before it whatever evidence she wanted and has been accorded both natural justice and procedural fairness.

48. The Tribunal accepts that the cancelation of the applicant’s visa will be disappointing for her and those who provided financial support.  Further, the Tribunal accepts that there is a degree of uncertainty in relation to where the applicant will live on her return to Kenya or indeed what she will do. The Tribunal also accepts that departing Australia having lived here for over 3 years could likely result in the applicant experiencing hardship of a financial, psychological or emotional kind, notwithstanding she did not provide specific evidence to support such matters.

49. The weight of these hardships against cancelling the applicant’s visa must; however, be balanced against the applicant’s breach and the circumstances giving rise to that breach.  Ultimately, the Tribunal only gives limited weight against cancellation of the applicant’s visa under this factor.

50. There is no evidence before the Tribunal of any other visa holder being at risk of having their visa cancelled under s.140.

    Past and present conduct of the visa holder towards the Department

51. There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such, the Tribunal gives this limited weight against cancellation of his visa.

    Whether there are mandatory legal consequences to a cancellation decision

52. If the visa is cancelled the applicant will become an unlawful non-citizen and liable to detention and removal. There is no evidence before the Tribunal to indicate that indefinite detention is a possible consequence of the decision to cancel the applicant’s visa.

53. The Tribunal notes that there is a level of uncertainty arising from the current COVID-19 pandemic and that the applicant may not be able to leave Australia to return home due to travel restrictions and/or the availability of means of travel.  In such circumstances there is the likelihood that she may be detained pending arrangements being made for her removal.  There is no evidence before the Tribunal that any such detention would be lengthy, let alone indefinite and the Tribunal notes that it would be open to the applicant to apply for a bridging visa.

1. The applicant could be prevented from making a valid onshore visa application due to the operation of s.48 if she does not fall within the exception listed in reg.2.12.  The applicant could make another student visa application offshore, although it would be subject to PIC 4013 meaning she could be precluded from being granted a further visa for a period of three years.

2. The Tribunal has also considered whether the applicant might be affected by PIC 4014. The applicant would be subject to PIC 4014 if she were to apply for a visa which was subject to this consideration pursuant to Schedule 2 of the Regulations. 

3. The Tribunal accepts that being precluded from being granted another visa for a period of time, together with the other potential consequences of cancellation including possible detention, are factors in favour of the exercise of discretion not to cancel the visa.

   Australia’s international obligations

4. There is nothing before the Tribunal to suggest that the cancellation of the applicant’s visa would breach any international obligation.  The Tribunal places no weight on this in considering the cancellation of the applicant’s visa.

   Any other relevant matter

5. There are no other relevant matters before the Tribunal.

6. Considering the circumstances as a whole, particularly the circumstances in which the ground for cancellation arose; the extent of the applicant’s compliance with her visa conditions and to a lesser degree, the purpose of the applicant’s stay in Australia; the Tribunal considers that on balance, the factors favouring the exercise of discretion to cancel the visa outweigh those against exercising such discretion.  Accordingly the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Darren Renton
   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.