Ngetich (Migration)

[2020] AATA 5069

Ngetich (Migration) [2020] AATA 5069 (18 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nicholas Kiprop Ngetich

CASE NUMBER:  1912117

HOME AFFAIRS REFERENCE(S):          BCC2019/278767

MEMBER:David Thompson

DATE:18 September 2020

PLACE OF DECISION:  Perth

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

Statement made on 18 September 2020 at 1:12pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered Higher Education course ceased – applicant entered a relationship with an Australian citizen – partner’s pregnancy – children of the relationship – separation from partner and children – financial hardship – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 May 2019 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 applicant had breached condition 8202 on his sub-class TU-573 student visa by failing to maintain enrolment in a 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 4 September 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Imogyn Murray, the review applicant’s partner. 

4. 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

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.

   Did the applicant comply with Condition 8202?

6. 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).

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

8. The applicant is a citizen of the Republic of Kenya. He finished his secondary schooling in Kenya and arrived in Australia in February 2016, aged 18 years. His visa was granted to allow him to study a series of courses comprised of a Certificate IV in Tertiary Preparation, a Diploma of Science (Health Studies), and a Bachelor of Science (Nursing). According to the delegate’s decision record, a copy of which the applicant provided to the Tribunal, his confirmation of enrolment (CoE) for his Certificate IV in Tertiary Preparation was cancelled on 3 April 2018 and he was not enrolled in a registered course of study from that date until the day upon which his visa was cancelled (7 May 2019).

9. The delegate’s decision record states that the applicant admitted this in his response to the Department’s Notice of Intention to Consider Cancellation (NOICC). At hearing, the applicant admitted once more that he had not been enrolled in a course of study since 3 April 2018.

10. 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

11. 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 Procedural Advice Manual, also known as ‘PAM3’.

12. The review applicant gave evidence at hearing, as did his partner Ms Imogyn Murray. The applicant impressed the Tribunal as an honest and earnest witness, who gave considered answers to the questions put to him. Ms Murray also impressed the Tribunal as an honest witness. She appeared to be quite nervous in giving her evidence, and consequently was somewhat more hesitant in giving her answers than was the applicant. The Tribunal draws no adverse inference from this. As will be seen, her anxiety was readily understandable in the circumstances of the case.

    The purpose of the visa holder’s travel to and stay in Australia

13. The applicant’s evidence at hearing was that he came to Australia in February 2016 in order to study, a short while after finishing high school. He stated that his mother is an accident and emergency nurse, and that he had spent a good deal of time during his childhood in and around hospitals. He also stated that it was his ultimate ambition at the time he arrived in Australia to become a doctor, but as he could not afford to study medicine he enrolled in a package of courses comprised of a Diploma of Science and a Bachelor of Science (Nursing) at Edith Cowan University, with a view to moving on to study medicine when he could. Some two years into his stay in Australia, the applicant’s interests moved to the area of mental health, and he was preparing to make changes in his courses to take him in that direction when circumstances, which will be discussed below, intervened. It was the applicant’s evidence that he still intends to study if and when circumstances allow him to.

14. The Tribunal accepts this evidence, and finds that the applicant came to and remained in Australia, with an intention to study, despite the fact that that intention has had to take second place to other concerns. The Tribunal gives this some weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

15. The applicant gave extensive evidence at hearing as to the circumstances in which the ground of cancellation arose. That evidence, which the Tribunal accepts, may be summarised as follows.

16. The applicant came to Australia to study very shortly after finishing high school. His financial circumstances were such that he had to work (within the limits of his visa conditions) to support himself. He found work with an agency, and was working shifts in various locations as a nursing assistant, kitchenhand, and cleaner in various locations as required. At the same time, he was adapting to living in a foreign country and to living independently for the first time in his life.

17. At some point between March 2017 and September 2017, work became scarce for the applicant. Consequently, in or about September or October 2017 he decided that he should move to Bunbury region, where work would be easier to find. He did so, and settled into a routine of working half the week in that area and coming to Perth to study for the other half of the week. He met Ms Murray in or about January 2018 and they quickly became close. She had been living with her mother, but shortly before she met the applicant her mother had decided to move to Queensland. Ms Murray had expected to move with her mother, and had resigned her employment as an administration officer in expectation of doing so. However, as matters developed Ms Murray had to decide whether to accompany her or to stay in Western Australia with the applicant. She chose the latter, and she and the applicant decided to rent an apartment and move in together. In March 2018, Ms Murray and the applicant learned that she was carrying the applicant’s child, and was 6 weeks pregnant. Ms Murray was unemployed at the time, and the applicant realised that he had to take responsibility for her. Ms Murray’s pregnancy was difficult. She was frequently sick, so much so that she could not work. The applicant had to take responsibility for all housework, as well as attending to his studies and working to support himself and Ms Murray.

18. As corroboration, the applicant provided the Tribunal with a copy of his and Ms Murray’s tenancy agreement for premises in Dunsborough. He also provided a copy of his casual employment agreement with Aegis Aged Care Staff Pty Ltd dated 26 October 2017 stating that his employment was as an assistant in nursing, kitchen hand, and cleaner,  and that his place of work would be the Ellenvale Aged Care facility, which is in Busselton.

19. The applicant’s circumstances continued as set out above, except that his and Ms Murray’s child, a daughter, was born on 30 November 2018. The applicant provided the Tribunal with a copy of their daughter’s birth certificate verifying this.

20. The Tribunal can well understand that, in the circumstances set out above, study had become a practical impossibility for the applicant. Whilst on one level, the circumstances leading to the cessation of the applicants’ enrolment and the breach of his visa condition could readily be described as the result of misadventure, they were also the result of the applicant’s own actions, both at the beginning of his relationship with Ms Murray and in deciding to support her through her pregnancy and beyond. They could not be said to be circumstances entirely outside of the applicant’s control. However, it would be callous in the extreme to suggest that the applicant could simply have walked away from the situation he had helped create for himself and for Ms Murray. Indeed, the Tribunal takes note that the applicant appears to have behaved honourably at all times, and has taken this into account in reaching its decision.

21. The Tribunal finds that the circumstances giving rise to the applicant’s breach of condition, whilst not entirely outside of his control, weigh somewhat in his favour.

    Extent of compliance with visa conditions

22. As has been stated above, the applicant became non-compliant with condition 8202(2) on 3 April 2018, when his then current enrolment was cancelled. He remained non-compliant with condition 8202(2) until 7 May 2019, the date of cancellation of his visa. There is no evidence before the Tribunal of any failure to comply with any other visa conditions, but the applicant’s non-compliance with condition 8202(2) was relatively lengthy. The Tribunal finds that the extent of the applicant’s breach weighs strongly against him, although that is ameliorated to some extent by the fact that he does not appear to have breached any other visa condition.

    Past and present behaviour of the applicant towards the Department

23. On the one hand, there is no evidence before the Tribunal that the applicant has been in any sense uncooperative in his dealings with the Department. Indeed, the evidence is to the contrary: the Tribunal notes that the applicant received the Department’s NOICC on or shortly after 29 March 2019, and responded almost immediately, sending the Department a response admitting his breach of visa condition and expressing contrition for his breach on 4 April 2019. On the other hand, the Tribunal also notes that at no time during his lengthy period of breach did the applicant approach the Department about his situation, although his response to the Department’s NOICC and his evidence at hearing makes it clear that he was aware of his breach long before receiving the NOICC.

24. The Tribunal gives this factor only very slight weight in the applicant’s favour.

    Degree of hardship that may be caused by cancellation

25. A circumstance not mentioned as yet in these reasons, and relevant to the issue of possible hardship, is that as of the date of hearing, Ms Murray was pregnant again. The applicant produced copies of a recent ultrasound scan to prove this, and the Tribunal accepts it to be the case. The applicant gave evidence that the birth was expected in January 2020. There is no evidence before the Tribunal suggesting that the applicant’s and Ms Murray’s second child was not born at or about that time.

26. The applicant gave evidence that the following hardships would result from if the cancellation of his visa were to be upheld:

    a.his children would suffer, because he would have to return to Kenya and they would be deprived of the presence of their father in their lives, and of his economic support;

    b.Ms Murray would suffer, because she would have to look after and provide for both children on her own, in circumstances where she has no family locally to support her, and where she has been unemployed since her first pregnancy;

    c.he would suffer, by:

    i.being separated from his partner and children; and

    ii.losing any opportunity to better himself through study in Australia, which he stated he still wishes to do when he is able to.

27. As regards the first point above, the Tribunal accepts that lack of a father present in their lives would be likely to cause the applicant’s children significant and long-lasting hardship. The applicant gave evidence that he would have difficulty finding work in Kenya. He stated that he is unqualified, and in Kenya there are few jobs for unqualified people. He also stated that even if he were to obtain a job for which qualifications were not needed, such as some form of labouring, the remuneration he would earn would be very low. The Tribunal accepts this, and observes that in these circumstances financial contributions from the applicant in Kenya would probably make very little material difference to his children’s and Ms Murray’s circumstances. The Tribunal asked the applicant at hearing whether his family in Kenya would be in a position to contribute to the upkeep of Ms Murray and the children. His response was that his family are hard-working but simple, and are not in a position to make any meaningful financial contribution.

28. As regards the third point above, the Tribunal accepts that separation from his partner and children would amount to a hardship for the applicant. The Tribunal also accepts that practically speaking, the cancellation of the applicant’s visa would effectively end his chances of studying in Australia. It is possible that the applicant might be able to obtain a fresh visa of some kind that would allow him to study and could raise, but on his evidence it seems very unlikely that he would be able to raise the funds required to allow him to return to Australia, at least in the foreseeable future. The Tribunal accepts that this amounts to a hardship to some extent, although one that the applicant could easily have predicted would flow from abandoning his studies in Australia.

29. Ms Murray also gave evidence at hearing, particularly on the issue of hardship. She confirmed that she was unemployed, and had been since around the time she first met the applicant. She had worked as an administrative officer before that, but had been unable to find work since, although she had tried to. She also confirmed that she has no family support locally. The Tribunal accepts her evidence on those points, which corroborates the applicant’s statements noted in paragraphs 17 and 19 above. The Tribunal asked Ms Murray if she would consider moving to Kenya with her children to be with the applicant. She stated that she supposed she would, but the manner in which she gave her evidence on this point made it very clear to the Tribunal that she found the thought overwhelming and that she is in all likelihood completely unsuited to such a move. The Tribunal finds it more likely than not that such a move would exacerbate rather than ameliorate the hardships that she and her children are likely to suffer, and doubts that such a move is in any sense a practical solution to the problems that would be caused if the applicant were forced to leave Australia.

30. The Tribunal finds that upholding the cancellation of the applicant’s visa would cause the applicant, and perhaps more importantly his children and Ms Murray, considerable hardship, both financial and emotional, and gives this factor considerable weigh in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

31. There is no evidence before the Tribunal suggesting that cancellation of the applicant’s visa would cause the consequential cancellation of any other person’s visa. The Tribunal gives this factor no weight, either for or against the applicant in reaching its decision.

    Whether the cancellation carries mandatory legal consequences

32. Cancellation of the applicant’s visa will entail certain mandatory legal consequences. If he does not leave Australia voluntarily, he will become an unlawful non-citizen for the purposes of the Act and may be detained under s.189 and removed under s.198 of the Act. Section 48 of the Act would limit the classes of visa for which the applicant would be entitled to apply whilst in the migration zone. However, those classes of visa do not include classes prescribed by reg.2.12 of the Regulations, which include Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas. A Partner visa would seem to offer an obvious route to regularising the applicant’s position and avoiding the hardships discussed above, so the effect of s.48 is in this case a matter of less significance than it might have been in other circumstances. Public Interest Criterion 4013 would prevent the applicant from being granted certain classes of temporary visa for a period, but it is by no means clear which of those classes (if any) the applicant might wish to use. Nonetheless, the Tribunal gives this factor a little weight in the applicant’s favour.

    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

33. On the evidence before the Tribunal, the only international obligation potentially relevant in this case is Australia’s obligations as a signatory to the Convention on the Rights of the Child. There is nothing before the Tribunal to suggest that cancellation of the applicant’s visa will, in and of itself, amount to a breach of Australia’s obligations under that Convention, especially given that it will be open to the applicant, despite cancellation of his student visa, to apply for at least some other classes of visa that would allow him to remain in Australia to live with and support his children: see COT15 -v- Minister for Immigration and Border Protection (No. 1) (2015) 236 FCR 148, at [32].

34. The Tribunal gives this factor no weight, either for or against the applicant, in reaching its decision.

    Any other relevant matters

35. Whilst the applicant has stated that he still intends to return to study, there is no evidence before the Tribunal to suggest that he has done so as yet. In the circumstances set out above, that state of affairs is both unsurprising and also unlikely to change it the near future. Indeed, the length of his period of breach, taken with the length of time he had already spent in Australia, is such that it is unclear whether, if the decision to cancel his visa were set aside, the applicant’s student visa would still be on foot or have any significant period of time left to run. The applicant is, therefore, more likely than not to fall into breach of condition 8202(2) almost immediately if the Tribunal sets aside the decision to cancel his visa. The applicant should, perhaps, be given the benefit of the doubt in this regard, but in the circumstances of this case the Tribunal is faced with the possibility of making a decision that would, in effect, restore a student visa to an applicant who is not in a practical position to study full-time. Such a decision would run counter to the intentions of the student visa programme, and to that extent would tend to compromise the integrity of that programme.

1. The Tribunal considers this to be a relevant matter in this case, and finds that it weighs strongly against the applicant.

2. Whilst there are important considerations weighing in favour of the applicant, not the least being the hardship cancellation may cause for the applicant’s children and for Ms Murray if it means that the applicant must leave the country, the Tribunal notes that there are avenues available to the applicant, in the form of other visa applications, to avoid that result. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   David Thompson
   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.