Musila (Migration)

[2020] AATA 508

Musila (Migration) [2020] AATA 508 (14 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Stephanie Mutono Musila

CASE NUMBER:  1803517

HOME AFFAIRS REFERENCE(S):          BCC2017/4281114

PRESIDING MEMBER:  Rachel Westaway

MEMBER:Genevieve Cleary

DATE:14 February 2020

PLACE OF DECISION:  Melbourne

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 14 February 2020 at 11:13am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – emotion and financial state – financial aid ceased – political violence in Kenya – arrears – commitment to studies – academic history – genuine intention to study – has financial support – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140
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 31 January 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 had not complied with paragraph 8202(2)(a) of condition 8202 by failing to maintain enrolment in a 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 26 March 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 set aside.

   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.

6. On 5 January 2018 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) from the Department regarding her student visa. She replied to the notice on 19 January 2018 with the following statement:

   I write to you the reason why I haven't enrolled back to a registered course since May      the 19 2017. I am aware that I have bridged my student visa contract and would like      to apologize for any inconvenience that I may have caused. The reason why I did not    enroll back to a registered course is that I had insufficient funds to pay for my     semester and I couldn't leave the country due to the similar situation. I humbly ask to            please not to cancel my student visa as this has never happen to me before and it is       not something I would ever repeat again. I kindly ask if I could be given a certain       period of time so that I can enroll back to a registered course. Please consider my       request as a lot of people depend on me. Please. Thank you.

7. The visa was cancelled and the applicant applied for review with the Tribunal. She provided a written submission to the Tribunal dated 7 February 2018. Her claims may be summarised as follows:

   a.  The circumstances of her visa cancellation arose because of her emotional state and financial constraints which led her to become confused.

   b.   Her parents ceased supporting her financially and she became depressed and she couldn’t raise the funds required. She was having problems communicating with her parents. She couldn’t pay for living expenses such as rent.

   c.   Her parents’ financial support ceased due to the political violence following the elections in Kenya. Their properties were burned down and they had to relocate. The shock and emotional strain of this situation also impacted her fitness to work in Australia. She did not tell her parents about her fee issues because she did not want to increase their burden at that time.

   d.   She could not return to Kenya because she had insufficient funds and the country was not safe. The elections dragged on until the end of 2017.

   e.   Her parents have asked the Kenyan higher education department for assistance and they might take responsibility for paying her school fees.

   f.    She will comply with all migration rules and communicate with the Department in the future.

8. The applicant provided the following material to the Tribunal:

   ·Applicant statement dated 7 February 2018

   ·Submission made by the applicant’s appointed migration agent dated 15 March 2019

   ·Statement of Academic Record from Edith Cowan University dated 11 April 2019

   ·Affidavit to confirm support dated 8 April 2019

   ·NetBank Saver transaction list dated 8 April 2019

   ·Screenshot of NetBank saver and Complete Access account balances dated 8 April 2019

   ·IELTS results dated 12 May 2016

   ·Academic transcript from Perth Institute of Business and Technology dated 16 October 2015

   ·An email from Murdoch University requesting documents and information dated 15 March 2019

   ·Account Statement in the name of Musila Kosgei Electricals dated 21 February 2019

   ·Account Statement from Cic Group in the name of David Kioko Musau dated 11 March 2019

   ·Print out from a financial institution in the name of Musila Kosgei Electricals

   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. The applicant did not dispute that she was not enrolled in a registered course when the Tribunal discussed the decision record provided by the applicant to the tribunal which stated that the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a registered course of study since 19 May 2017. In essence, she was not enrolled in a registered course for approximately 8 months until the visa was cancelled. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. 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’

    the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

13. The applicant explained that she was turning 25 years old and is originally from Kenya and she arrived in Australia on 19 October 2014. This is the applicant’s first student visa and she confirmed she has never travelled outside of Kenya before.

14. She completed year 12 equivalent in Kenya and her marks averaged 60%. She is the oldest of 3 children with a younger brother and a younger sister. The applicant’s sister is in high school and her brother is at university in Nairobi studying for a Diploma in Construction.

15. The applicant’s mother is an accountant and her father had an electrical business. He owned an electrical shop, and would service electrical problems at people’s homes.

16. She chose Australia because it has good health care and offers a first class education.  She has a first cousin who is an Australian citizen. He has lived in Australia for 7-8 years and is married with a child aged 2-6 months however she confirmed that she does not live with her cousin. She explained that he lives in Perth and for a short time the applicant lived with him to build up her confidence.

17. The applicant enrolled in Diploma of Health Science as a pathway to Edith Cowan University. She aimed to complete a Bachelor of Nursing. She has always wanted to be a nurse and has a passion for helping others. The applicant completed her Diploma and her IELTS. She received some credits and high distinctions in her Diploma. Tribunal has requested that she email her IELTS results and Diploma results. She claims to have obtained credits and distinctions and failed one unit which was Epidemiology. She resat the unit later and then passed it. When she obtained the required level of IELTS she enrolled at Edith Cowan University in the bachelor. She completed semester 1; having failed two units and passed two. The applicant stated that she failed Mental Health and Adult Health. The applicant enrolled in second semester and she enrolled in 3 units. She did not complete these because her enrolment was cancelled as she could not pay the fees.

18. The applicant later sent the copies of her academic results which the Tribunal has viewed. These indicate that the applicant did undertake her studies on arrival into Australia and was awarded a Diploma of Science and received an overall band score of 7.5 in IELTS.

19. She explained that there are several nurses in her family and employment opportunities in her country. She felt that if she had an international degree it would help her get a good job with better pay. She identified Abakan Hospital in Kenya and explained that there are a few private hospitals and she intended to apply directly to the hospital.

20. The applicant explained that an Australian qualification was highly sought after and would place her in a good position for employment on return and she hopes to complete her studies.

21. The Tribunal has considered the applicant’s reasons for studying and note that she was able to demonstrate that she had applied herself and was a genuine student up until the time of the financial issues. She was able to discuss her future career aspirations with in a clear and convincing manner leading the Tribunal to accept that she was genuine about her continued interest in completing her studies. The Tribunal therefore gives this factor some weight in not cancelling the visa.

    circumstances in which ground of cancellation arose.

22. The applicant explained that her parents were previously paying for the fees however her stepfather’s business was affected and he defaulted on payments so they restructured the loan and her mother became the guarantor. However her mother was then left to support the three children and she could not afford the loan for the applicant’s studies. She explained that her parents would pay the university directly twice a year and the applicant would tell them when the money was due and she paid her for rent and food from her weekly pay.

23. The applicant explained that she works as a support worker and carer in Perth for WA Blue Sky. She is working with disabled and mentally challenged people and assisting with their daily living. She also performs duties as a carer, dressing and cooking for clients and assisting with daily activities. She likes both roles and finds they challenge her differently.

24. She discovered her parents could not pay the fees when she kept getting reminders to pay the fee of $10,000, which she could pay in instalments in two sets of $5000. When the applicant called her mother about paying the fee she explained the situation back home. The applicant was reliant on her parents. She does not have a close relationship with her cousin so she did not ask for money and when asked by the Tribunal whether she attempted to take out a loan herself, she confirmed that she did not.

25. The applicant has never returned to Kenya since arriving in Australia. She said that she enquired about emergency financial support but it was too late when she enquired.

26. The Tribunal asked the applicant about her studies and she stated that she commenced her studies in 2014 and finished the Diploma in December 2015 and then undertook the IELTS course for 3 months before starting at Edith Cowan University in July 2016. The university cancelled her enrolment before her exams in May 2017. She didn’t tell the Department that there was an issue with her enrolment because she was fearful she would be sent back to Kenya and would not return again. She said that she was hopeful that her mother could pay the fees for the second semester but by July she realised her mother still didn’t have the fees and she stopped picking up her daughter’s calls. She clung onto the hope that everything would be ok and her mother would be able to pay for the school fees. Her mother did not tell the applicant that her father was not working. She also explained that her father defaulted on a previous loan and hence he cannot take out another loan.

27. The applicant provided her father’s account statement to the Tribunal to demonstrate that her father defaulted on the loan.

28. The Tribunal has considered the applicant’s explanation as to why her enrolment was cancelled. The Tribunal accepts that the circumstances as explained are genuine and the applicant has spoken truthfully about her parent’s financial struggles. The applicant has provided a detailed and credible account of how she paid her university fees and how she was unaware of the financial situation her mother faced until it was too late and she was in arrears. The Tribunal accepts that the circumstances were beyond the applicant’s control however as the applicant accepted, when she did realise and she was in arears, she did not inform the department as she thought there may still be a chance her family could pay and also because she was worried she would lose her opportunity to study.

29. The Tribunal gives some weight in favour of the applicant and not cancelling the visa given the evidence provided to support their financial problems as well as the applicant’s convincing explanation of her lack of knowledge until the last minute regarding her inability to pay the fees. Whilst the Tribunal does not condone not informing the Department of the situation and departing the country, it appreciates that in this situation, the applicant was already in arrears with her payments and was not aware until the situation became problematic.

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

30. The applicant has spoken honestly about the fact that she could and would return to Kenya if her visa is cancelled and study nursing. However, she has also spoken about her ambitions to study nursing in a heartfelt and genuine way and her desire to remain in Australia and complete her course of which she has already progressed.

31. The applicant explained that an Australian qualification is highly sought after and it would be disappointing to miss this opportunity. It would also place her in a better position to be employed in hospitals of her choice which she outlined in detail to the Tribunal.

32. The Tribunal appreciates that a cancellation of a student visa especially after some study has been undertaken would be disappointing and cause a degree of financial and emotional hardship for the applicant and those close to them.

33. The applicant has stated that she would be disappointed and her competitiveness in the employment market would be reduced if she was not able to obtain an Australian degree. Notwithstanding this, she confirmed that she could return to Kenya and study nursing. The Tribunal gives minimal weight to these factors in the use of its discretion and not cancelling the visa as they are a natural consequence of a visa cancellation.

    the extent of compliance with visa conditions

34. There is nothing before the Tribunal to suggest that the applicant has not complied with other conditions on her visa. However the Tribunal expects that all visa holders adhere to the conditions on their visa and as such the Tribunal gives this factor no weight in favour of the applicant and not cancelling the visa.   

    past and present behaviour of the visa holder towards the department

35. There is nothing before the Tribunal to suggest that the applicant has not responded to the Department or the Tribunal in a timely and courteous manner and has behaved appropriately. The Tribunal does note the applicant should have informed the Department of her situation before the Department contacted her. However, given the circumstances of her parents financial situation and the fact that she knew little about it, the Tribunal accepts that the applicant has displayed honesty and integrity overall and as such gives this factor some weight in favour of the applicant and not cancelling the visa.   

    whether there would be consequential cancellations under s.140

36. There are no other people associated with the visa and as such this factor carries no weight in the Tribunal’s considerations.

    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

37. If the visa is cancelled the applicant is likely to be barred from applying for any further visas for three years. It will be her responsibility to ensure her immigration status is lawful or she may be liable for detention. The applicant has explained that she would like to complete her studies and an inability to apply for another visa for three more years would mean that this is not possible. The Tribunal sees a bar as the intended consequence of a cancellation. The Tribunal gives this factor minimal weight in favour of the applicant and not cancelling the visa.

    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

38. The applicant has not outlined any reasons why she is unable to return to Kenya and complete her studies. The Tribunal therefore gives no weight to this consideration in favour of the applicant and not cancelling the visa.

    any other relevant matters.

39. The applicant provided evidence at hearing and after the hearing to support her statement that if her visa is not cancelled, she has the financial means in which to pay for the remainder of her studies. She provided one financial statement from her uncle whose name is David and he is her father’s cousin. He has his own business. She knows him and sees him regularly throughout the year. The applicant was asked why she did not seek assistance from this uncle prior. She stated that she didn’t ask prior because she thought that her parents may not have been disclosing their financial issues to family however when they did tell him he agreed to assist.  Her uncle had approximately $32,000 Australia dollars available. She explained that she has two years left of her course. She has saved AUD $10,000 and she pays AUD $200 per week for living expenses.

40. The Tribunal explained that in spite of the financial offer from the uncle it appears the applicant may still have issues meeting the financial requirements. She was asked why she has put forward a copy of correspondence from Murdoch University and studying there and she said it was slightly closer to her home as she lives in Belmont.

1. The applicant was given time to supply a full submission on financials and ability to pay for the remainder of her course and confirmation of her university of choice. On 11 April, the applicant supplied a statutory declaration from her Uncle stating he will be responsible for all of her tuition and living expenses during her time in Australia. She supplied a submission on 9 April 2019 outlining evidence and an explanation of her Commonwealth bank account with $9,800 and another account of $11,458. She explained that this would cover her for one semester of fees.

2. The applicant has provided the Tribunal with evidence that she has the financial support of her uncle to ensure that she does not face the same difficulties in fee payments. Whilst the Tribunal is not assessing her ability to meet the financial requirement of the student visa, it has considered her ability to avoid the issue which led to the cancellation. The Tribunal accepts that the applicant has family support to mitigate the same situation occurring again.

3. The Tribunal has considered the applicant’s situation and the issues she has raised for not cancelling the visa. The Tribunal places significant weight on the applicant’s academic history and commitment to her studies up until the time her parents experienced financial problems. It also places significant weight on her sincerity and the manner in which she explained her interest in nursing and desire to work in that field. Whilst the Tribunal does not condone the situation the applicant was in and remaining in Australia on a student visa without being enrolled in a course, it places weight on her resourcefulness in identifying the situation and arranging for her Uncle to support her. She has also demonstrated her genuine intention to study and explained clearly where she sees her career in Kenya.

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

   DECISION

5. 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

   
   

   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.