Kyunde (Migration)

[2019] AATA 4169

Kyunde (Migration) [2019] AATA 4169 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kelvin Mwendwa Kyunde

CASE NUMBER:  1816292

HOME AFFAIRS REFERENCE(S):           BCC2018/906924

MEMBER:Noelle Hossen

DATE:4 September 2019

PLACE OF DECISION:  Perth

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

Statement made on 04 September 2019 at 1:22pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – unsigned conditional offer of enrolment – not enrolled in a registered course – consideration of discretion – significant period of non-enrolment – purpose of visa not fulfilled – 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 28 May 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 breached condition 8202 of his visa, making his visa liable for cancellation. 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 provided a copy of the decision of the Department to the Tribunal.

4. The applicant appeared before the Tribunal on 16 April 2019 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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

7. 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?

8. 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).

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

10. The applicant was sent a Notice of Intention to consider cancellation (NOICC) on the 9 May 2017.The applicant did not respond to that notice. The applicant stated at the hearing that he did receive the notice by email. The applicant told the Tribunal that he did not respond to the email. The Departmental file shows that the Department had confirmed with the applicant his contact details prior to sending out the notice by email. The applicant emailed the Department his contact details on the 19 April 2018 and that was the email address that the Department sent the Notice to. The Tribunal is satisfied that the applicant did receive the Notice from the Department.

11. The decision record indicates that information on the Department systems indicated that the applicant was not enrolled in a registered course of study since the 24 July 2017.

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course at the time of the Department’s decision and at the time of the hearing before the Tribunal. The Tribunal gave the applicant extra time to provide information and he submitted an unsigned conditional offer of enrolment approximately 1 month after the hearing. The applicant has provided the unsigned conditional offer to the Tribunal but he was not enrolled in a Course at the time of the hearing and the decision of the Department. Accordingly, the applicant has not complied with condition 8202(2) before the visa was cancelled.

    Consideration of the discretion to cancel the visa

13. 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’

14. The applicant is a 23 year old man from Kenya who arrived in Australia on a Student visa on the 16 October 2015.He is single and does not have children. The applicant has not travelled to his home country following his arrival in Australia. He stated at the hearing that none of his family has travelled to Australia but he presently lives with friends of his family who are from his home country and that they are helping him out with housing.

15. He was enrolled to complete a Diploma of Commerce at Curtin University and was due to commence his first trimester on the 19 October 2015.He told the Tribunal that he attended the Course for the first trimester and that he did not pass the Course and was asked to repeat by the College. He did attend to repeat the Course. However he could not obtain credit for it as he did not pay the fees and was asked to defer for a year which he did. This information is consistent with the letter from Curtin College dated the 7 May 2019 and provided to the Tribunal after the hearing, as the Tribunal had provided extra time for him to furnish the letter to the Tribunal after the hearing.

16. The applicant had provided to the Tribunal an offer which was unsigned, through his migration agent on the 15 April 2019, for a Diploma of Commerce from Curtin College to start on the 11 October 2017.The first trimester was to end on the 26 January 2018 for stage 1 and then for stage 2 to commence on the 2 July 2018 to the 26 January 2019.He was to commence and complete a Bachelor of Commerce by the 25 February 2020.The applicant was asked at the hearing to explain whether he attended the course and he said that he did not as he did not want to do it. He said that his parents had told him to study commerce and he did not want to. He did not pay for the Course as he said it would have been a waste of money.

17. The Tribunal gave him extra time to provide his documentary evidence as he stated that he had in fact completed one trimester of the course at Curtin College starting 2015 but could not get credit for it as his fees were not paid to the College and he was asked to repeat the first trimester. The Tribunal extended the time for him to provide further documentation to prove the facts. He could not meet the deadline and asked for an extension of time. The deadline was the 1 May 2019 and it was extended to the 8 May 2019.He did not provide the information as sought by the Tribunal on the 7 May which is the letter from Curtin College referred to in paragraph 15 above.

18. He told the Tribunal that his family had the money to pay the fees but they did not pay on time. It was confusing to the tribunal as the submission from the migration agent in writing provided to the Tribunal prior to the hearing on the 15 April 2019 stated that he had paid for his tuition fees for one year prior to his arrival to Australia. The submission from the migration agent was different to the applicant’s oral evidence at the hearing. He also said that he completed the first trimester but did not pass so he had to start all over again. He stated that he had deferred for one year. The applicant may have had an approved period of non-attendance by the College. Whilst the College is at liberty to approve a period of non- attendance, it is the applicant’s responsibility to ensure that he is compliant with conditions of his visa. The education provider is not responsible for the applicant’s adherence to conditions outside of its area of authority. Whilst technically enrolled he did not attend or progress through the courses. I give this factor significant weight in favour of the visa being cancelled.

19. The applicant did provide a letter from Curtin College to the Tribunal following the hearing as requested by the Tribunal but that information did not shed any light on the matter but confirmed that the applicant was not enrolled at the time that the visa was cancelled. The letter stated that the Applicant commenced his studies on 19 October 2015 and did not re-enrol for the first study period of 2016.The applicant re-applied to continue his studies later in the third trimester of 2016.He did not re-enrol for the second trimester in 2017.The College cancelled the Applicant’s confirmation of Enrolment and withdrew the student from Curtin College. The Tribunal finds that the applicant has not fully explained his behaviour in stopping studying and not maintaining enrolment and gives this significant weight towards the visa being cancelled.

20. The purpose of the travel and stay in Australia was to complete a Bachelor of Commerce. At the time that the applicant arrived in Australia he had just completed his secondary school. His results from his schooling in Kenya were as follows: English C Kiswahili C Mathematics C Biology D Chemistry D+ Geography D+ Christian religious Education D.

21. He was not enrolled in a course of study at the time of the hearing and said that his parents wanted him to wait for the outcome of the Tribunal’s decision before committing to a Course. He presently lives with family friends. He says that he does not work. He says that he is now interested in pursuing a degree in Building and Construction. The applicant could not articulate at the hearing what he planned to do in the Building Industry other than managing workers. He gave vague answers to the questions put to him about his reasons for choosing this path of study. He said that he did not have any experience in the building industry. He said that he picked the path as he has walked past building sites and considered that he would be interested in that pathway. He said that he wanted to return to his home country after the completion of his studies and for his parents to be proud of him. He said that the systems in Kenya involve a lot of corruption and it would be difficult for him to get a job without a degree. The reality is that he has lived in Australia since 2015 and has not progressed in any course and was last enrolled or attended a course in the last semester of 2016.He has provided to the Tribunal an unsigned Offer of conditional Offer and acceptance from Everthought College of Construction PTY LTD on the 30 May 2019(after the deadline). The Tribunal is mindful of the seriousness of obtaining a student visa and remaining in Australia and breaching a condition such as non- enrolment. Whilst appreciating the hardship that the applicant and his family may face regarding a cancelled visa, it does not outweigh the breach and the Tribunal gives these reasons limited weight. The Tribunal has taken that information into consideration but has placed limited weight on the unsigned conditional offer of acceptance as contained in this paragraph in arriving at the decision to affirm the decision of the Department.

22. He has no family in Australia and has not returned to his home country since 2015. He did mention in his evidence that there was a problem with violence in his home country and it was one of the reasons why his fees were not paid on time in 2016 but that has been resolved and there are no concerns regarding political violence in his home country presently.

23. He said that his mother owns a business in his home country and there is a letter on the file from a person who is willing to sponsor his further studies in Australia. The Tribunal has placed some weight in the applicant’s favour in respect of the payment of fees.

24. The circumstances surrounding the cancellation was not beyond his control as he could have consulted with the college or the Immigration Department as he had not been studying for quite some time before he received notice of the cancellation by email from the Department on the 9 May 2018. He also submitted in writing that he had spoken to the College and the Department and had been told to just keep up his PRISMS record up to date. The applicant was therefore aware that he had to be enrolled in a registered course of study.

25. He now says that the Course of study being the Bachelor of commerce was not suitable for him and he wanted to be studying in the Building and Construction Industry. He was asked to explain that the Construction industry is varied and the sort of trade that he was considering. He stated that he would like to manage people on the site. He did not and had not made enquiries as to what specifically he could do on a site and has never previously worked in the Industry. The Tribunal does not accept his explanations. If he was keen on that pathway he should have made the necessary enquiries as soon as he was not enrolled. The Tribunal considers that the breach of the condition 8202(2) is significant having been for a long period. The Tribunal gives the lengthy breach of condition 8202 some weight towards the visa being cancelled.

26. He stated that he wanted to have an opportunity to study in Australia and if the Tribunal rejected his Application he would appeal the decision.

27. The Tribunal has weighed all of the evidence and information before the Tribunal. The Tribunal is not satisfied by his evidence and the information as it fails to explain the reasons for the breach, as he stopped attending and studying for a significant period of time prior to the breach. Ultimately student visas are provided for the purpose of study. The Applicant studied only for several months, did not complete any courses, and remained in Australia, unenrolled for a year without taking any action. He did not study for long and the Tribunal has no confidence that, were he to have his visa reinstated, he would do so.

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

    DECISION

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

    Noelle Hossen
    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.