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

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ngetich (Migration) [2020] AATA 5069
Case: [2020] AATA 5069
Decision Date: 18 September 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of an applicant whose Student (Temporary) (Class TU) visa, Subclass 573, was cancelled. The cancellation was based on the applicant's failure to maintain enrolment in a registered course, a breach of condition 8202 of the Migration Regulations 1994. The applicant, an 18-year-old Kenyan citizen who arrived in Australia in February 2016, had been enrolled in a series of courses including a Certificate IV in Tertiary Preparation, a Diploma of Science (Health Studies), and a Bachelor of Science (Nursing).

The primary legal issue before the Tribunal was whether the applicant had breached condition 8202 of the Migration Regulations 1994, specifically by not being enrolled in a registered course. If a breach was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958. The Tribunal also considered the applicant's personal circumstances, including his relationship with an Australian citizen, the birth of children to the relationship, his subsequent separation from his partner and children, and claims of financial hardship.

The Tribunal found that the applicant had indeed breached condition 8202(2) as he had not been enrolled in a registered course since 3 April 2018, a fact admitted by the applicant. Despite acknowledging the applicant's honest testimony, his initial intention to study in Australia, and the potential hardship cancellation might cause to his children and his former partner, the Tribunal ultimately affirmed the decision to cancel the visa. The Tribunal noted that avenues were available for the applicant to apply for other visas to remain in Australia.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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 The Tribunal affirms the decision to cancel the applicant’s Class TU visa.David ThompsonMemberATTACHMENTMigration Regulations 1994…Schedule 88202(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.

Ratio Decidendi

Legal Principle Established

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 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’. 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 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. 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 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. 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.