Miring'U (Migration)

[2019] AATA 4118

Miring'U (Migration) [2019] AATA 4118 (3 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel Gitau Miring'U

CASE NUMBER:  1909287

HOME AFFAIRS REFERENCE(S):           BCC2019/302722

MEMBER:Genevieve Cleary

DATE:3 September 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 500 (Student) visa.

Statement made on 03 September 2019 at 10:19pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – motivation to study in chosen field – strong incentives to return to Kenya – circumstances giving rise to non-enrolment – unsatisfactory academic progress – cultural adjustment – death of father – loss of financial support – beyond the applicant’s control – decision under review set aside

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 8 April 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).

2.     The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted. 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 2 September 2019 to give evidence and present arguments.

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

5.     Prior to the hearing, the applicant sent to the Tribunal:

·A letter dated 17 August 2019 signed by his migration agent;

·The decision of the delegate of the Department, and

·Air tickets, photographs and a burial permit to show that his father died in September 2017, and he returned to Kenya for 3 days for the funeral, all of which the Tribunal accepts.

6.     The Tribunal has also had regard to the Department file.

7.     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

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 full time registered course: 8202(2)(a)

·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: 8202(2)(b); and

·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(c)(ii).

10.      The applicant’s visa was granted on the basis that he was enrolled in a Diploma of Business and a Bachelor of Business.  Therefore, once completed, the highest achievement would provide a Level 7 (Bachelor Degree) qualification from the Australian Qualifications Framework (AQF).

11.      The applicant’s visa was cancelled on the basis that the applicant had not maintained enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted.

Was the applicant enrolled at the relevant time?

12.      The highest Confirmation of Enrolment in relation to which the applicant’s visa was granted was Bachelor of Business which, once completed, would provide a Bachelor Degree qualification.

13.      The delegate’s decision outlined that the Provider Registration and International Student Management System (PRISM) indicated that the applicant was enrolled in the following courses of study as at 1 June 2017:

•Diploma of Business, commencing 21 June 2017 and to be completed on 1 June 2018, and

•Bachelor of Business, to commence on 16 July 2018 and to be completed on 10 July 2020.

14.      The delegate also outlined that PRISM indicated that on 16 March 2018 the enrolment in the Bachelor of Business course was cancelled by the education provider. On 16 April 2018 he obtained enrolment in an Advanced Diploma of Business at Stott’s College. This enrolment is at an Advanced Diploma or Associate Degree level, being at AQF Level 6, rather than a Bachelor Degree AQF Level 7.  As he was not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), the circumstances of subclause 8202(3) do not apply to him.

1. On the evidence before the Tribunal, the applicant was not enrolled in a Bachelor level (AQF Level 7) course between 16 March 2018 and 8 April 2019.

2. A Notice of Intention to Consider Cancelation (NOICC) of the visa was sent to the applicant on 26 March 2019 and the applicant responded on 1 April 2019.  In that response he admitted that he was no longer enrolled in a Bachelor level course.  He also admitted that when he commenced the Diploma of Business at Edith Cowan College in June 2017 he attended only “spasmodically” as he struggled with the content.  At the hearing in the Tribunal the applicant agreed that one of the conditions of his visa was that he be enrolled in a Bachelor level course, and he also agreed that at the time of cancelation he was not enrolled in a Bachelor level course.

3. Accordingly, the applicant has not complied with condition 8202(2), and the ground for cancellation under s. 116(1) has been made out.

   Consideration of the discretion to cancel the visa

4. 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.’

   19.      At the hearing at the Tribunal the process of review was explained to the applicant. It was explained that the Tribunal had the discretion to consider relevant factors in deciding whether to cancel or not to cancel the visa. I have carefully considered the response to the NOICC and the other documents provided to the Tribunal by the applicant and the applicant’s evidence at the hearing.

   The purpose of the Visa holders travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

   20.      The applicant arrived in Australia from Kenya on 25 June 2017. He was granted a Student (Temporary) (class TU) (subclass 500) visa on 1 June 2017 on the basis that he was enrolled in a Diploma of Business at Edith Cowan College  and a Bachelor of Business at Edith Cowan University, which he was to commence after completion of the Diploma course.

   21.      He did not attend orientation for the Diploma course in June, however he commenced the course at the start of the semester, on about 26 June 2017.

   22.      Prior to arriving in Australia he had completed a qualification in accounting.  He came to Australia with a desire to study business, so that he can return to Kenya to become an auditor, running his own business. Having carefully considered the applicant’s response and the other evidence before me, I accept that he initially came to Australia to study, and I give this some weight in his favour.

   23.      From the outset he said he struggled with the course at Edith Cowan College. In particular, he found the cultural differences marked, and had trouble adapting. He felt he was the only Kenyan, or African, student in his classes, and did not bond with any other students. In addition, he found that some of the content was clear, other content was not.  He had also left his 2 month old daughter and wife behind in Kenya, and missed them, coming to a country where he did not know anyone. 

   24.      The Tribunal accepts that those circumstances would have been challenging to the applicant, and caused him to struggle, at least initially, and gives this some weight in his favour.

   25.      The applicant has, since his visa was cancelled, completed an Advanced Diploma of Business, which he commenced on 21 May 2018.  This course finished on 17 May 2019.  He enrolled in this course in April 2018, relatively quickly after his initial enrolments were cancelled by Edith Cowan College and University, and a year before the Department wrote to him notifying him of its intention to cancel his visa.  The delegate was aware of this enrolment when the decision to cancel his visa was made. While the enrolment was not for a Bachelor Level course, the Tribunal gives this enrolment some weight in the applicant’s favour; it shows an intention to study, and maintenance of the business focus.

   26.      The applicant has finished the course, however he is seeking a review of one of the subjects, which he did not complete satisfactorily.  He therefore has not been awarded the qualification as yet.  In any event, after completing all the subjects, he enrolled in the Bachelor of Business course at Stott’s College which is due to be completed on 30 June 2022.  He enrolled in that course in May 2019.          

   27.      While that course has only just commenced, he feels he is performing well. He hopes that he will be credited with some prior learning, which may shorten the expected duration of the course.  It is noted that in his response to the NOICC he said that he did not feel he could study at a higher level than the Diploma course.  However, he told the Tribunal at the hearing that he feels he is coping now with the Bachelor level course.

   28.      The applicant therefore has now brought himself back to the position he was in when he arrived in Australia, and has an enrolment for a Bachelor level course, and he is to be given credit for this; he has maintained a course towards a Bachelor level degree in his initially chosen field.  These factors substantially weigh in his favour.

   29.      The applicant also has cause to return to Kenya.  As has been mentioned above, he left a new daughter and wife in Kenya.  His wife is a manager at a hotel, although she did not work between the birth of their daughter and her turning 2.  His wife did not want to come to Australia, and, as is described below, at one stage put pressure on the applicant to return to Kenya before completing his courses. The applicant’s daughter is their only child.  Therefore, the applicant has a compelling need to return to Kenya at some point, as opposed to a need to remain in Australia beyond his current course, and that also weighs in his favour.  I give this factor some weight in favour of him having a Student visa.

   30.      The applicant said that it was his main purpose in Australia to study.  The Tribunal is satisfied that that is the case. Given his accounting background, and his desire to run a small auditing business, the Diploma and bachelor of Business courses are a natural progression, and will add value to his future.  These factors weigh in favour of him being able to remain in Australia temporarily to complete his current course.

   Circumstances in which the ground of cancellation arose

   31.      The cancelation of his enrolment came about, ostensibly, because the applicant did not pay his fees at Edith Cowan College, and, he admitted at the hearing, because he failed most of the subjects he attempted.  There were a number of reasons for this: firstly, the cultural adjustment the applicant found when he arrived, which he said meant he felt he had no support in his studies, and made it difficult for him to apply himself.

   32.      In addition to that, he had been attending the course for about 1 and a half months when he found out his father was ill. He asked his siblings whether he should return, and he spoke to his father, who all assured him that his father would recover, so he did not return. Unfortunately, his father did not recover, and died in September 2017, shortly before the applicant was to sit his first exams.

   33.      He returned to Kenya and spent 3 days there.  He was not aware that he could apply to defer his exams, or ask for special consideration, so he felt he had to return in time for his first exam.  He did not pass any of the exams he sat when he returned.

   34.      Accordingly, he could not progress in the course.  He spoke to someone on campus and they told him he must enrol to keep the conditions of his visa, so he enrolled in 2 subjects for the next semester.  However at that point, he was labouring under a number of issues.  He missed his family; having seen his wife and daughter again after returning for his father’s funeral, he became, from what he described, homesick.  He spoke daily to his wife who urged him to return to Kenya.  He was also, naturally, grieving the death of his father.

   35.      Further, his father had guaranteed he would pay for his courses in Australia, and the first semester at Edith Cowan College had been paid, however given that he had died, there was then no access to his father’s finances.  In addition, his father had 2 wives who were also making claims on the estate.  It is noted that the applicant said in his original application for a Student visa that he could rely on his brothers as well as his father for financial support, however he explained at the hearing that since the death of his father and the inability of all of his family to access funds because of legal issues between various members of the family over the estate, that support was no longer possible.

   36.      The applicant said he went to the college and told them of his problems and they allowed him to remain and continue studying, given his circumstances.  However, he was not able to access any funds, and by the commencement of 2018 he said the college were putting pressure on him to pay, until they cancelled his enrolment. He attended classes in November and December 2017; the exams were to be in March.  He was not able to sit the exams because he had not paid his fees.

   37.      As the applicant was grieving for his father, he said that he found it more difficult being away from his family, and being somewhere where he had experienced difficulty in adjusting and adapting. He became isolated, and recounted to the Tribunal going to the beach and wondering if he should swim into the deep water and end his life. He suffered from insomnia. The Tribunal accepts that all of those factors, coming together at once, would have made it difficult for the applicant to maintain his studies, and to rectify the situation once he was struggling further with his courses, and payment. 

   38.      The applicant sought assistance from the college counsellor, attending on 2 occasions, and he said this assisted him.  He did not seek any medical help or any further counselling. In this case the applicant has been consistent and frank in his evidence and the material put before the Tribunal about the causes of the cancellation, including the fact that he was struggling academically even before his father’s death; there is no doubt that the death of a parent, after being told not to return home because that parent would get better when they fell ill, would be difficult to address far from home. Given the convergence of a number of situations, the Tribunal accepts that it was not just one thing which lead to him being unable to comply with the terms of his visa, but many, none of which were in his control.  These factors combined with his current enrolment, cannot weigh against him in the discretion to affirm the delegate’s decision; on the contrary, weight is given in his favour because of them. 

   39.      Eventually, after the limited counselling, the applicant said that he convinced his wife that he should stay, and she now supports him in doing so. While he continued to attempt to study, he did meet some people with whom he became friends, and that has assisted in his recovery. 

   40.      Before the enrolments were cancelled the applicant did not work.  After the cancellation of the enrolments he realised that he would need to pay for his courses himself if he wished to stay, and he worked as a construction labourer.  That work is ongoing.  His wife, when he came to Australia, was living on their savings, however she will now return to work as well.

   41.      To ensure that he is able to pay his fees, he has also chosen education providers who allow him to pay weekly, rather than by semester in advance.  At present he is meeting the fees as required, and he is receiving some financial support from his family, and friends in Australia. 

   42.      There is no doubt the period over which the applicant was not suitably enrolled was significant. I therefore give the lengthy breach of condition 8202 some weight towards the visa being cancelled.  However, for the reasons given above, I accept the explanations given for his lack of appropriate enrolment and I find that they are reasonable explanations in the circumstances.  I acknowledge that he is now enrolled in a Bachelor level course.  The length of the breach is to be weighed against those explanations and the fact that the applicant is now studying at the Bachelor level again, and I find that, weighing all those factors, that weight rests with the visa not being cancelled.

   The extent of compliance with visa conditions

   43.      The applicant told the Tribunal that he has not applied for any other visas either in Australia or for entry elsewhere.  There is no other information before the Tribunal to suggest that the applicant has breached other conditions of his visa, or any other visa. 

   44.      The applicant told the Tribunal that he has worked while in Australia and has worked 20 hours per week; there is nothing before the Tribunal to suggest otherwise, and I accept that he has, other than the lack of appropriate enrolment, complied with his visa conditions. His compliance in relation to those conditions is in his favour. As I have said above, while I acknowledge that the breach of condition 8202(2) is significant, weighed with the reasons for the breach, and the relatively quick enrolment in another course, albeit at a lower level, after the initial course cancelations, and his current enrolment in a Bachelor course, the Tribunal finds that the breach is outweighed by those other factors.

   Past and present behaviour of the visa holder towards the Department

   45.      The applicant said that at the time he was struggling, and at the time of the cancelation, he did not know to call the Department.  Having now met other students on temporary visas, and having dealt with the Department over his cancelation, he knows that he should have spoken to the Department to tell them what was happening, and of his intentions to return to the bachelor course.

   46.      According to the Decision Record of the Department there was no evidence that the applicant had been uncooperative towards the Department. I give this some little weight in his favour.  There is nothing before the Tribunal to indicate any adverse conduct by the applicant to the Department and as such the Tribunal gives this some weight against cancelling the applicant’s visa.

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

   47.      In the letter from his migration agent, he says that his visa cancelation has caused a great degree of hardship for him and his family. However, the Tribunal was provided with no specific evidence of that hardship, and, given he re-enrolled and commenced a course relatively quickly after the enrolment was cancelled, and, in any event, before the visa was cancelled, he has not suffered for an extension of time away from his family, or from an inability to study.  The cancelation of the enrolment was the reason for him having to start his course again, not the cancelation of the visa.

   48.      The Tribunal accepts that any visa cancelation would cause some stress to a student and his family, particularly a wife with a young daughter waiting for him in their home country. The Tribunal also accepts that the cancellation of a visa is disappointing and that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study. The Tribunal gives these considerations a little weight towards the visa not being cancelled.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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

   49.      If the current visa is cancelled, this will result in the following:

   •The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;

   •The applicant will have limited options to apply for further visas in Australia;

   •The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Requirement 4013 to be met.

   50.      I give little weight to this consideration in favour of the applicant because:

   ·       These are the intended consequences of the legislation when a visa is cancelled under these grounds;

   ·       It reflects the seriousness with which the Department takes this type of cancelation ground;

   ·       The applicant will be eligible to apply for a bridging visa while he makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that he does not co-operate in applying for a bridging visa.

   Whether there would be consequential cancelations under s.140

   51.      This factor is not relevant and I give it no weight.

   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 cancelation

   52.      The applicant said he had come here to study, and he would like to complete the Bachelor course before he returns to his wife and daughter.  The applicant did not indicate any reason or fear of return to Kenya.  I find there is no information to support that any international obligation would be breached and give this factor no weight.

   If it’s a permanent visa, whether the former visa holder has a strong family, business or other ties in Australia.

   53.      This is not relevant and I give it no weight.

   Any other relevant matters

   54.      I find that there are no other relevant matters to consider.

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

   DECISION

   56.      The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

   Genevieve Cleary
   Member

   
   

   ATTACHMENT

   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.