Mwangi (Migration)

[2018] AATA 1036

Mwangi (Migration) [2018] AATA 1036 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Njehia Mwangi

CASE NUMBER:  1801184

DIBP REFERENCE(S):  BCC2017/3683132

MEMBER:Christine Kannis

DATE:16 March 2018

PLACE OF DECISION:  Perth

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

Statement made on 16 March 2018 at 7:52am

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector visa – Did not respond to the Notice of Intention to Consider Cancellation –  Non-payment of fees – No longer enrolled in a registered course of study – Financial difficulties – No extenuating circumstances

LEGISLATION
Migration Act 1958 ss 116,140,189
Migration Regulations 1994 Schedule 8 Condition 8202

CASES
Liu v MIMIA[2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 11 January 2018 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal 12 March 2018 to give evidence and present arguments. 

5. 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

6. 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. Relevant to this case, these include the ground set out in s.116(1)(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.

   Does the ground for cancellation exist?

7. On 8 January 2016 the applicant was granted a visa in Subclass 572 Vocational Education and Training Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 24 April 2017. His enrolment in an Advanced Diploma of Engineering Technology was cancelled on 24 April 2017. The reason for cancellation was stated to be non-payment of fees.

9. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 24 April 2017. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. 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 to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3).

12. On  23 November 2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

13. The applicant did not respond to the NOICC.

14. Prior to the hearing the applicant’s representative provided a written submission which included the following information:

    ·The applicant successfully completed the first semester of his course in 2016. At the same time his mother fell seriously ill and the family were unable to send him sufficient funds to pay his tuition fees.

    ·The applicant managed to obtain the required funds of $5,000 a few weeks after his enrolment was cancelled and he approached his education provider seeking to re-enrol in his course. His education provider demanded over $13,000 and he was unable to pay that amount.

    ·The applicant did not see the NOICC until the end of December 2017 when it was too late to respond.

    ·The applicant’s mother is now well and his family are in a better position to provide funding for his tuition and living expenses.

    ·The breach of the applicant’s visa condition was due to circumstances beyond his control.

15. The applicant told the Tribunal that his failure to attend his classes was not intentional. He explained that his mother had provided him with financial support in Semester 1, 2016. She has a boutique and a transport business. The applicant said his mother stopped providing him with money in Semester 2, 2016 because she was unable to work and was bedridden after she stepped on something that affected her leg. The Tribunal asked the applicant whether his father had been able to provide financial assistance. He said his father worked in agriculture and did not earn a good income.

16. The applicant said although he was still enrolled in Semester 2, 2016 his education provider, TAFE, would not allow him to attend classes because he had not paid his tuition fees. He said he worked in Semester 2, 2016.

17. The applicant told the Tribunal that in Semester 1, 2016 he completed a Certificate III in Aged Care with a view to obtaining employment whilst he was studying.

18. The applicant said about one month after his enrolment was cancelled he had two appointments with TAFE because he wanted to re-enrol in his course.  When he first met with TAFE he was advised that he would have to pay $7,000 in fees. He only had $5,000 comprised of money he had saved from his employment income and money his cousins had given him. He tried to obtain the additional $2,000 from his cousins but they could not assist him. When he next met with TAFE he was told that in addition to tuition fees for 2017 he would also have to pay the outstanding Semester 2, 2016 fees. The total amount he was required to pay was around $13,000.

19. The Tribunal put to the applicant that he would have known he was in breach of a condition of his visa following cancellation of his enrolment. He said he was not aware of the conditions attached to his visa and did not understand the significance of the conditions.

20. The Tribunal noted that the applicant did not study in Semester 2, 2016 or at all during 2017 and asked him, given that he was in Australia on a student visa, why he did not contact the Department about his circumstances. He said he kept hoping TAFE would eventually accept him and allow him to re-enrol however his evidence was that he met with TAFE twice in May 2017 and not at any time thereafter.

21. The Tribunal asked the applicant the reason he failed to respond to the NOICC. He said he did not check his emails and so he did not see the NOICC until much later.   

22. The Tribunal asked the applicant the reason he came to Australia to study. He said he wanted to study Electrical Engineering so that he could return to Kenya and start his own building installation business. He wants to help his community in Kenya by employing others.

23. Regarding the potential hardship which would result from the cancellation of his visa the applicant said he would suffer psychologically because he wants to help his community. His parents would also be affected because the village community is expecting him to return with an Australian qualification.

24. The applicant said his parents are once again able to assist him financially and he would be able to pay his tuition fees if he is allowed to remain in Australia.

    Conclusion

25. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the applicant’s oral evidence at the hearing.

26. The applicant told the Tribunal that the cancellation of his enrolment was due to his mother suffering an injury and consequently being unable to provide financial assistance. No medical evidence was provided to substantiate the timing or nature of the applicant’s mother’s injury.

27. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since 24 April 2017 and seven months elapsed from that date until the NOICC was issued. The applicant said he had not attended classes in Semester 2, 2016 because he was not able to pay the tuition fees. He said he worked and by May 2017 he was in a positon to pay TAFE $5,000.

28. The applicant’s evidence regarding his mother’s injury was vague however given that he said her injury prevented her from financially assisting him in Semester 2, 2016 and that he did not have sufficient funds to pay his outstanding and current fees in May 2017, it appears he was contending that the impact of her injury lasted for at least several months. The Tribunal finds this implausible, particularly in light of his evidence that the injury was due to her stepping on something and the lack of any medical evidence.

29. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

30. In relation to the applicant’s evidence that he was not aware of the significance of the conditions of his visa, the Tribunal gives this no weight in his favour not to cancel his visa because the responsibility sits with the applicant to ensure he meets the requirements of the visa.

31. The evidence did not indicate that the ground for cancellation arose due to extenuating circumstances beyond the applicant’s control. The Tribunal does not accept that the applicant’s mother’s injury was the primary reason he was unable to pay his tuition fees in 2016 and throughout 2017. It is the responsibility of the visa holder to ensure that they have sufficient funds to undertake study in Australia.

32. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant and to his family.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

33. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

34. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

35. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

36. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

37. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    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.