Lotika (Migration)

[2019] AATA 3009

Lotika (Migration) [2019] AATA 3009 (21 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Mary Benedict Baraka Lotika

CASE NUMBER:  1805997

HOME AFFAIRS REFERENCE(S):          BCC2017/4188538

PRESIDING MEMBER:  Rachel Westaway

MEMBER:Damian Creedon

DATE OF ORAL DECISION:  21 March 2019

DATE OF WRITTEN STATEMENT:         13 May 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 13 May 2019 at 11:45am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary)(Class TU) visa – Subclass 573 Higher Education Sector – failed to maintain enrolment in specified course for visa subclass – unsatisfactory course progress – applicant’s depression due to separation from family – family pressure to undertake Bachelor of Business degree – applicant’s intention to undertake Bachelor of Hospitality – father’s subclass 457 visa grant – relocation of family to Australia – no family support in home countries – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116(b), 140

Migration Regulations 1994 (Cth), condition 8516, r 2.12(1)
STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 March 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 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) as the holder had not complied with a condition of the 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 appeared before the Tribunal on 21 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s father Dr Lotika and her mother Mrs Kalume.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.1161)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

6. On 19 January 2018 and 12 February 2018 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) regarding her student visa. The second letter superseded the first letter.

7. The applicant’s father, Dr Lotika, responded on behalf of his daughter to the Notice of Intention to Consider Cancellation on 22 January 2018 and 14 February 2018 which was issued by the Department. His response may be summarised as follows:

   a)    He claims that his family is originally from the Democratic Republic of Congo; however they fled due to political instabilities and have lived in South Africa for 21 years.

   b)    He claims that after experiencing xenophobia several times he and his wife decided to send their children to Australia. He claims that the applicant has experienced serious problems coping with her studies due to her sudden separation from her parents. He feels that their separation has caused his daughter to experience hardship and depression.

   c)    He claims there are no grounds to cancel the applicant’s visa. He claims they approached RMIT several times to discuss their daughter’s issues and RMIT did not engage with them, although advice was provided that the applicant could enrol in a lower level program in 2018.

   d)    He claimed that the applicant received an acceptance letter and COE (certificate of enrolment) from Perth College of Business and Technology for a course commencing in February 2018. He claims that the applicant has recovered from her depressive state and he is ready to pay her tuition fees and expenses.

   e)    He claims that he and his wife have decided to relocate to Australia to be with their children. He claims that he included the applicant in his 457 visa application, however the visa could not be granted to the applicant because her birth certificate does not state her parents’ names. He begs that the applicant’s visa not be cancelled; claiming that their entire family is in Australia, they have no family in South Africa, and the applicant has nowhere else to go. He said that the Democratic Republic of Congo is in turmoil and the applicant cannot return there.

8. The following documents were submitted to the Department:

   a)    A letter by Perth College of Business and Technology dated 29 January 2018 offering the applicant enrolment in a Certificate 3 in Commercial Cookery commencing 19 February 2018 and finishing 18 February 2019, a Certificate 4 in Commercial Cookery commencing 25 February 2019 and finishing 24 August 2019, and a Diploma of Hospitality Management commencing 14 October 2019 and finishing 14 April 2020.

   b)    The applicant’s COE (no. 96A31390) in a Diploma of Hospitality Management at Perth College of Business and Technology, starting 14 October 2019 and ending 14 April 2020

   c)    The applicant’s COE (no. 96A2F139) in a Certificate 4 in Commercial Cookery at Perth College of Business and Technology, starting 25 February 2019 and ending 24 August 2019.

   d)    The applicant’s COE (no. 96A2CB92) in a Certificate 3 in Commercial Cookery at Perth College of Business and Technology, starting 19 February 2018 and ending 18 February 2019.

9. On 16 March 2018 the Tribunal received a written submission from the applicant’s father. It may be summarised as follows:

   a)    He claims that the applicant commenced her course at RMIT in March 2016 and she was expelled in April 2017 after failing four out of her eight subjects. He claims that she was under tremendous stress due to her separation from her parents. He said that he and his wife tried to resolve the situation with RMIT, however no one would listen and the experience was humiliating.

   b)    He states that he and his wife are convinced that the applicant is capable of higher study and she was among the best in her class in South Africa. He claims that the applicant’s health has recovered.

   c)    He reiterates his claims made to the Department as to why the applicant cannot return to South Africa or the Democratic Republic of Congo, and claiming that an additional reason that the applicant cannot return to the Democratic Republic of Congo is that she can hardly speak French.

   d)    He claims that his and his wife sacrificed everything to be reunited with their children in Australia and requests that the applicant’s student visa be re-instated or that she be allowed to be included as a dependent on his 457 visa. The situation is causing him sleepless nights.

10. The following documents were submitted to the Tribunal:

    a)    The applicant’s father’s 457 visa grant notice dated 2 November 2017.

    b)    A notification letter dated 2 November 2017 regarding the refusal of Victoire Kalume Lotika’s application for a 457 visa and the associated decision record.

    c)    A notification letter dated 2 November 2017 regarding the refusal of Mary Benedict Baraka Lotika’s application for a 457 visa.

    Does the ground for cancellation exist?

    s.116(1)(b) - non-compliance with conditions

11. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 was attached to the applicant’s visa. This condition requires that the holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of their visa.

12. The applicant provided the Tribunal with a copy of the delegate’s decision. This referenced information available on the Provider registration and International management System (PRISM) and indicated that the applicant was not enrolled in a bachelor or master’s degree of which the applicant’s subclass 573 student visa was initially issued for.

13. At hearing the Tribunal asked the applicant to confirm if she had maintained ongoing enrolment and she stated that she had not and her enrolment was cancelled because she had not achieved satisfactory marks. She confirmed that she was enrolled in a Bachelor of Business and Marketing.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) 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 discretion

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’.

    Background

16. The applicant appeared before the Tribunal and provided the following oral evidence. She arrived in Australia on 29 February 2016 with the objective of pursuing her studies. She had completed her high school education in South Africa.

17. She stated that she was born in the Democratic Republic of Congo but moved to South Africa as an infant. She claims to have no family in the Congo and her immediate family are in Australia as her father is on a temporary work visa. She explained that her siblings were also in Australia and had arrived around the same time. She has two older brothers and an older sister. Her eldest brother is studying IT and her sister is studying public health.

18. She was happy to come to Australia and it was on the bases that her entire family were moving to Australia. She explained that her father is a doctor and had a job offer. Her mother was not working. She said that RMIT was the first institution to accept her.  Her father’s job was in Warburton in Victoria. She explained that her parents settled in Australia a little time after she arrived. Her father was initially working as a doctor in Victoria however he was not happy with his work and took a position as a doctor in Queensland.

19. Her mother came to Australia with her and her sister to settle them into Australia and school and she planned to join them later.  She explained her brother arrived later in July 2016.

    The Purpose of the visa holder’s travel and stay in Australia and whether there is a compelling need to remain

20. She explained that she was enrolled in a Business course but had an interest in studying to be a chef. She explained she was enrolled at RMIT to study a Bachelor of Business but her interest had always been in practical studies and she liked cooking. She explained that she felt pressured by her family who are high achievers and that her father did not consider a cookery course appropriate. When asked about her previous studies in the Congo where she has lived most of her life, she stated she had previously studied consumer studies, business, maths literacy English and Africans and CAT which is a beginners guide to IT as well as life orientation and had achieved average marks.

21. The applicant explained that she did not like her business course and did not pass subjects. She said that she struggled. Her enrolment was terminated. Her father gave evidence at hearing and stated that she then struggled with depression and mental health issues.  The Tribunal notes that when her status was noticed by the Department, she enrolled in a course however this was not a higher education course for which the subclass 573 was issued. Her visa was subsequently cancelled.

22. The applicant presented as a shy and timid young woman who appeared to lack the maturity expected of a person who as a teenager was living overseas without parents but under the care of the sister and brother.

23. The Tribunal asked the applicant if she understood that she is not able to studying on a subclass 573 the course which she selected and she understood. She appeared to understand that she was required to undertake studies at a Bachelor level.

24. When asked about the effects a cancellation would have on her she explained that she would need to leave Australia however her entire family are in Australia as her father is on a temporary work visa.  She said that she has distant family based in the Congo but the country is in turmoil and she has no remaining family in South Africa. She explained that her father is the only person providing for the family. She said that she is 21 years of age and she is too young to return to South Africa by herself and that her father has been paying for her fees and she really would like to complete a course.

25. She explained that she lives with her oldest brother whom her father stated also had adjustment issues when he first came to Australia but has managed to refocus and complete his studies.

26. The applicant’s father provided oral evidence to the Tribunal and explained that they are on one income and he is paying for all of his children to study and they are struggling financially. He explained that he has spent all of their savings to come to Australia so that he can work under the subclass 457 scheme and the relocation meant that he had to sell all of his assets. The cost of his daughter having her visa cancelled would be a significant cost as well.  He also expressed concern that if her visa was cancelled then he would struggle to determine where should could go given her age. He stated she has not lived in South Africa which is her country of birth since she was three years of age and she has no family there and it is unsafe. He stated that they have been living in South Africa but they have very old relatives who would be unable to care for her. He appreciated that she would face a three year bar from applying for another visa to come to Australia and for a young person with her immediate family in Australia, this is a long time. He explained that she has ambitions of studying to be a chef but it is a qualification which is not highly recognised in South Africa and courses are generally short courses of around six months. So he hopes that she is able to undertake a bachelor course in Australia.  

27. The applicant’s father explained that he came to work in Australia as a doctor and to bring his family because they wanted to leave South Africa. He said that they experienced a xenophobic attack and he decided to send his children away and he followed.

28. He said that his family are very important and he and his wife want their children close to them whilst he is working and they were desperate to reunite. The visa applicant is his youngest child. He explained that his other children have had successful academic records and he is certain that his daughter if given a second chance will be able to deliver. He explained that as her enrolment had been cancelled she struggled to find a bachelor level course in hospitality and she was young and did not realise the consequences. He stated that he and his wife regret leaving the children. He also stated that he would not want his daughter to return to South Africa without any family members to be with her due to safety concerns so she would need to live in the Congo where there are family members however French is the main language used and she cannot speak French and has no close family or friends there and the country is in turmoil.

29. He explained that he had to sell everything and his mother died in January and his father is 74 in Kinshasa which is the capital of the Democratic Republic of the Congo so he is too old to care for his daughter. He also stated that the standard of living is much lower.

30. He explained that his subclass 457 working visa is valid until 2022. He also explained that his medical registration will be ready next year. He said that he wants to be with his children and sold of everything to reunite with them and work in Australia. He said that he and his wife did not realise that the separation shook their children up and he explained that their eldest child also experienced issues initially and has now done very well.  

31. The applicant’s mother expressed her sadness and concern that it is not safe to send her daughter to South Africa or the Congo by herself for the period in time when they are working in Australia. She explained that her daughter has experienced anxiety and depression through the ordeal.

32. The Tribunal has considered the purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia. The Tribunal accepts that the applicant came to Australia with the intention of studying. The Tribunal notes that the applicant arrived in Australia and attended the course but failed several units over the course of her first year. She did not enjoy business and she chose business due to her family’s wishes. The Tribunal accepts that the family attempted to engage with RMIT to put her into a lower level course. The Tribunal notes that RMIT would not have been able to do this based on the visa issued to the applicant. The Tribunal accepts that the applicant is a member of a family with a genuine commitment to tertiary education and that they are a close family. The Tribunal also accepts that Australia was chosen as a place to complete the applicants tertiary studies as it coincide with her father’s work as a doctor in Australia. If the visa is cancelled, the applicant will need to depart Australia and there are limited hospitality courses at a bachelor level offered in South Africa. Furthermore she would have no family in South Africa as her immediate family are all in Australia and she has a grandfather in the Congo but no relatives in a position to look after her.  The Tribunal accepts that that applicant’s immediate family, namely her parents and siblings are in Australia as her father is on a temporary work visa working in regional Australia as a doctor. The Tribunal places significant weight in favour of the applicant’s reasons to stay in Australia based on her family’s presentation at hearing as a family genuinely committed to study and keeping their family unit close. The applicant is 21 years of age and presents as quite young. Her immediate family are in Australia temporarily and have sold their assets to be able to relocate to Australia and take up employment.  The Tribunal places significant weight on the applicant’s reasons to study and remain in Australia in favour of not cancelling the visa.

    the extent of compliance with visa conditions

33. The applicant was responsible for a significant breach pertaining to her visa. Her visa was granted in February 2016 to undertake a bachelor or masters level degree at RMIT. She was excluded from study on 5 April 2017 a year later. She had undertaken eight subjects and had passed four and failed four in a Bachelor of Business.  She claims to have tried to communicate with RMIT the course provider to undertake a lower level course but was unsuccessful. The Tribunal notes that as her father was in Australia on subclass 457 visa and he tried to add her to the visa as a dependent to regularise her status however this was refused as the birth certificate provided did not have the correct details listed. Evidence of this was provided to the Tribunal. The applicant confirmed that she was empting to enrol in a lower level course and provided evidence of this and a subsequent certificate of enrolment.

34. It is clear to the Tribunal that the applicant had not complied with several conditions on her visa. She was not enrolled in a registered course of study following her exclusion. She had enrolled in a course some time later which was not at a bachelor or master’s level. She had not made progress in her course given she failed subjects. Given the serious breaches to conditions on the applicant’s visa, the Tribunal gives more weight in this instance to cancelling the visa.

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

1. The applicant will face a significant degree of hardship if her visa is cancelled. She is young and a dependent on her parents. Her entire family are in Australia for her father’s temporary work as a doctor. If the visa is cancelled she will need to live in either South Africa or the Congo by herself for several years until her father completes his employment contract. If he leaves, then he will leave two other children in Australia by themselves until their studies are complete. Furthermore he has sold his assets to fund his stay in Australia for this employment opportunity and his children’s studies. The Tribunal would expect that the applicant and her family would be disappointed by a cancellation. It would also appreciate that overseas study is expensive and the financial loss would be something the family would face. The Tribunal finds however that the applicant’s case is slightly different in that she presents as a young and naive girl and her entire immediate family are in Australia. As such, the hardship both she and her family would face if she was unable to continue to study in Australia would be significant. The Tribunal gives this significant weight in favour of the applicant. 

2. past and present behaviour of the visa holder towards the department

3. The applicant has co-operated with the Department and with the support of her family has tried to rectify her immigration status by applying for another course and also attempting to go onto her father’s subclass 457 visa but it was to no avail. The applicant and her family have treated her situation with genuine concern and sincerity. The Tribunal gives this some small weight in favour of the applicant.

   whether there would be consequential cancellations under s.140

4. The applicant has no one else associated with this visa. As such the Tribunal gives this no weight.

   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

5. The applicant will be subject to an exclusion period under section 48 of the Migration Act which will prevent her from making a valid application for any visa except for those prescribed under r.2.12(1) of the Migration Regulations and a student visa and a visitor is not exempt. As such the applicant would face three years being unable to come to Australia where her parents and siblings are living. Whilst the applicant would have appeal rights, as her visa would be cancelled, she would need to apply for a bridging visa E to remain lawful whilst she made plans to depart the country. The Tribunal accepts that these are the intended consequences of the cancellation. However, given that the applicant’s entire immediate family are in Australia, the Tribunal considers a three year exclusion period based on her age to be significant. The tribunal gives this some weight in favour of the applicant.

6. 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

7. The applicant and her father have submitted that the applicant would need to return to the Democratic Republic of Congo which is in political turmoil or alternatively South Africa where they have experienced xenophobic attacks. However they have not made any specific protection claims. Should they have protection claims then the applicant could seek advice pertaining to this and an application would be assessed separately to her student visa cancellation. The Tribunal gives this no weight.

   any other relevant matters

8. The applicant has provided a copy of a certificate of Enrolment for a Certificate III and Certificate IV in Cookery and has stated that she would like to enrol in a Bachelor of Hospitality but her cancellation has prevented her from receiving any offers and as such certificates of enrolment.

9. The Tribunal accepts that the applicant has demonstrated at hearing her genuine interest in cooking and hospitality and her commitment to a more practical course which she would like to undertake at a bachelor level if permitted to do so. The Tribunal gives this some weight towards not cancelling the visa

   Conclusion

10. The Tribunal has had the benefit of speaking to the applicant and her parents which has enabled the Tribunal to obtain more information about the family and the applicant’s circumstances and genuineness in the presentation of her evidence. The applicant has lived the majority of her life in the Congo and had completed high school. She was a teenager and came to Australia living without her parents. Her family present as academic and high achieving. The applicant clearly felt pressured to undertake a Bachelor of Business found hard and unenjoyable. Given her immaturity, her isolation from her parents and her family pressure to undertake the course, she has failed several subjects. This has led to her exclusion and subsequent cancellation. The applicant and her family have tried to rectify the situation but for a range of reasons were unable to. Whilst the tribunal would expect that in normal circumstances the applicant should depart the country, her entire immediate family were in Australia and her father was on a temporary work visa. Given the applicant’s evidence, the Tribunal is satisfied she intends to study at a bachelor level and most likely a Bachelor of Hospitality. However the legal consequences of the cancellation would prevent her from applying for another visa and she would be separated from her family for the next three years which is the period in time the applicant’s father would be working under his subclass 457 visa. It would cause significant hardship for the family to relocate back to the Congo or South Africa due to this situation.  Considering all of the reasons put forward, the Tribunal places more weight in favour of the applicant and not cancelling the visa. 

11. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled

    DECISION

12. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Rachel Westaway
    Senior Member