Kiprotich (Migration)

[2020] AATA 947

Kiprotich (Migration) [2020] AATA 947 (17 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dennis Kiprotich

CASE NUMBER:  1811760

HOME AFFAIRS REFERENCE(S):          BCC2018/192729

MEMBER:Stephen Conwell

DATE:17 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 17 March 2020 at 12:50pm\

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – no appearance at hearing – discretion to cancel visa – studies financially supported by sister – change in sister’s financial circumstances – education provider cancelled enrolment rather than advising and assisting – no approach to department – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 379A(5), 362B

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

CASE

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 17 April 2018 made by a delegate of the Minister for Home Affairs 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 was not enrolled in a registered course and therefore had breached condition 8202 of his 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 was represented in relation to the review by his registered migration agent.

4. The applicant sought review of the delegate’s decision at the Tribunal and attached a copy of the delegate’s decision with his application.

5. By letter dated 31January 2020, the Tribunal wrote to the applicant, via his representative, inviting him to attend a video hearing before the Tribunal on 17 March 2020. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. By email response of 28 February 2020 the applicant’s representative confirmed the applicant’s attendance at the scheduled hearing.

6. The applicant did not appear before the Tribunal at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5) and he responded to the invitation by confirming his attendance. In the circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to determine the review without taking any further action to enable the applicant to appear before it.

7. 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

8. 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?

9. 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)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

11. The Tribunal notes that the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) on 12 March 2018. The NOICC stated that it appeared to the Department that the applicant was not enrolled in a registered course of study between 4 August 2017 and 19 March 2018. The applicant’s representative provided a written response to the NOICC by email of 28 March 2018. 

12. In his response to the NOICC the applicant claims that changes in his financial circumstances culminated in the cancellation of his enrolment in a registered course on 4 August 2017. Whilst the response to the NOICC does not expressly concede the applicant’s breach of condition 8202, it does agree that the applicant’s Confirmation of Enrolment (COE) had been cancelled by his educational provider which “has attributed to the breach of this condition.” The response to the NOICC then seeks to explain the circumstances of the breach.

13. The applicant submitted a copy of his NOICC reply to the Tribunal with his application for review. No other written submission has been put before the Tribunal. The submission is summarised as follows:

    ·the applicant states that his education had been sponsored by his sister, a world champion athlete whose sporting success financed his overseas studies. Her financial circumstances changed when she took maternity leave and was no longer able to participate in athletic events;

    ·the significant change in his sister’s financial circumstances meant that she could not continue to support the applicant’s studies;

    ·the applicant informed his educational provider about his financial difficulties  with the expectation that he might be offered assistance to re-structure payment of his course fees.  He claims that his educational provider did not offer any such assistance and instead he found that his COE had been cancelled;

    ·the applicant enrolled in a registered course on 19 March 2018, however he enrolled in a diploma level course as he was unable to enrol in a higher education course within the enrolment schedule at the time;

    ·his late reply to the NOICC came about through the inaction of his previous migration agent;

    ·he values his Student visa and seeks another chance to complete his studies. His sister has resumed her athletic activities and the applicant is assured of her financial support to enable him to complete his studies in Australia.

14. Based on the information before it the Tribunal is satisfied that the applicant was not enrolled in a registered course of study between 4 August 2017 and 19 March 2018.  The Tribunal is not satisfied the applicant meets condition 8202(2)(a). Further, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a registered course (per Liu v MIMIA [2003] FCA 1170).

15. The Tribunal finds that on the basis of the evidence, the applicant ceased to be enrolled in a registered course, and therefore has breached condition 8202 of his visa.

    Consideration of the discretion to cancel the visa

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

17. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to the material evidence available to it, as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3) ‘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 or remain in Australia

18. The Tribunal notes the purpose of a Student visa is to allow for travel to and stay in Australia in order to study. There is no evidence to suggest that the applicant came to Australia for any other purpose than to study. The representative’s written submission does not dispute that he had not been enrolled in a registered course of study between 4 August 2017 and 19 March 2018.  The Tribunal is satisfied that the applicant was not pursuing the purpose for his travel to Australia as he was not actively engaged in studies during that time – a period of non-enrolment exceeding 7 months.  

    The extent of compliance with visa conditions

19. There is no information before the Tribunal to indicate that the applicant is in breach of any condition of his visa, other than condition 8202. However the Tribunal considers the breach to be significant, given the length of time in which the applicant failed to maintain enrolment.  The Tribunal also considers this to be a serious breach given the significance of enrolment in a registered course, for the visa granted.

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

20. The Tribunal notes the applicant had not identified any hardship that may be caused to him and/or any family member by the cancellation of his visa. However, the Tribunal accepts the applicant might be subject to some financial difficulty if the visa is cancelled. The Tribunal also accepts that if the applicant’s visa is cancelled he would become an unlawful non-citizen and liable to detention under s.89 and removal under s.198 of the Act. He would also have limited options to apply for further visas in Australia and may thus be required to return to his country of origin. However, this does not satisfy the Tribunal it should exercise the discretion not to cancel the visa.

21. The Tribunal notes there is no evidence that any family member/s in Australia would be negatively impacted by the cancellation of the applicant’s visa. 

    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 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.

22. According to his written submission the circumstances in which the applicant’s non-enrolment arose were, in summary:

    ·his education is sponsored by his sister, however her financial circumstances changed and she was no longer able to support his studies;

    ·he was unable to enrol as a result of the change in his sister’s fortunes and he  informed his educational provider about his financial difficulties;

    ·instead of assisting and advising him, his educational provider cancelled his COE;

    ·he is now enrolled in a registered course and is confident of his sister’s continuing financial support. He requests another chance to complete his studies in Australia.

23. The Tribunal notes that the applicant has provided no evidence to support this claim.

24. It is reasonable to expect that a Student visa holder affected by financial difficulties would depart Australia temporarily until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.

25. Student visa holders who no longer study in Australia and are enrolled in a CRICOS registered course should either make plans to depart Australia, or discuss their predicament with their educational provider and seek advice from the Department regarding their visa status.

26. The onus rests solely on the Student visa holder to contact the Department before taking any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change.

27. It is reasonable to conclude that the applicant was aware of these circumstances yet failed to contact the Department to advise of his changed circumstances or seek clarification or advice regarding his visa status. Instead he has remained in Australia in breach of his Student visa condition for an extended period of time.

28. Further, based on the evidence before it, the Tribunal is not satisfied the breach occurred in circumstances beyond the applicant’s control.  Neither does the Tribunal consider there are extenuating or compassionate circumstances in this case.

    Past and present conduct of the visa holder towards the department

29. Nothing adverse is known about the applicant’s past and present behaviour towards the Department. 

    Whether there would be consequential cancellations under s.140

30. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

    Whether any international obligations would be breached as a result of the cancellation

31. Regarding Australia’s international obligations, the Tribunal is not persuaded that the circumstances of this case were such that would engage Australia’s international obligations. There is no evidence of children (or other family members) in Australia whose interests would be affected by the cancellation.  There was nothing to suggest that family violence was a relevant factor.

    Any other relevant matters

32. As the applicant did not attend the scheduled hearing, despite accepting the invitation to appear before the Tribunal and the representative’s submission did not mention any other relevant matters, this consideration is given no weight by the Tribunal.

    Conclusion

33. The Tribunal has considered the totality of the applicant’s circumstances and has found that the applicant breached the enrolment requirement in condition 8202 and that this breach was significant.  There is no evidence before the Tribunal to indicate the applicant was enrolled in a registered course of study of study between 4 August 2017 and 19 March 2018.

34. Considering the circumstances as a whole, the Tribunal is satisfied the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    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.