Ngugi (Migration)

[2019] AATA 1484

Ngugi (Migration) [2019] AATA 1484 (30 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Patricia Wanjiku Ngugi

CASE NUMBER:  1712449

HOME AFFAIRS REFERENCE(S):           BCC2017/1342950

MEMBER:P. Maishman

DATE:30 January 2019

PLACE OF DECISION:  Perth

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

Statement made on 30 January 2019 at 5:37pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in a registered course of study for a significant period of time –financial hardship – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202, Public Interest Criterion (PIC) 4013

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 June 2017 made by a delegate of the Minister for Immigration and Border Protection 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 has not complied with a condition of her visa. 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 Tribunal invited the applicant to attend a hearing on 12 September 2018. On 5 September 2018 the applicant requested the hearing be adjourned for 2 weeks as she was unwell. The applicant provided a medical certificate indicating she was unfit from 5 September 2018 to 7 September 2018. The Tribunal declined the applicant’s request to adjourn the hearing. The applicant’s representative wrote to the Tribunal on 9 September 2018 and again on 11 September 2018 providing a medical certificate certifying the applicant was unfit to continue her usual occupation for a period of three days including 12 September 2018. The Tribunal rescheduled the hearing.

4. The applicant appeared before the Tribunal on 3 October 2018 to give evidence and present arguments.   

5. The applicant was represented in relation to the review by her registered migration agent. The applicant’s registered migration agent did not attend the hearing.  

6. 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

7. The applicant provided the Tribunal a copy of the delegate’s decision record with her application for review of the decision. The delegate’s decision record summarises that the applicant is a 30-year-old citizen of Kenya. On 5 April 2016 the applicant was granted a Student (Temporary) (class TU) Higher Sector (subclass 573) visa for a stay until 15 September 2018. The applicant’s visa was cancelled on 8 June 2017 because the delegate considered the applicant had failed to comply with a visa condition and determined the visa should be cancelled.

8. The Tribunal had before it a copy of the Department’s file containing the papers relevant to its decision. The documents on the Department’s file considered by the Tribunal relevantly included the Department’s Notice of Intention to Consider Cancellation (NOICC) dated 22 May 2017; and the applicant’s response to the NOICC on 6 June 2017 including an affidavit from Mr George Ngugi sworn on 5 June 2017 and a Police Abstract Form from the National Police Service of the Republic of Kenya appearing to have been signed on 4 April 2016. 

9. The applicant gave the Tribunal a copy of the delegate’s decision record with her application for review that summarises the applicant’s visa history. The applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 5 April 2016. Evidence before the Department from the Provider Registration and International Student Management System (PRISMS) indicates the applicant had not been enrolled in a registered course since 28 April 2016. The delegate notes that PRISMS also shows the applicant had been previously enrolled in courses that were cancelled because of her failure to pay the required tuition fees in 2011 and 2014.

10. At hearing the applicant requested time to provide records of her results from Edith Cowan University (ECU), documents supporting her claims for compassionate circumstances, and any document to explain a discrepancy between her evidence and the Police Abstract. The Tribunal agreed to the information being provided by 18 October 2018.

11. On 16 October 2018 the applicant’s representative sent the Tribunal correspondence from Edith Cowan University indicating the applicant had sought information from them on 11 October 2018 and that information would not be available until 23 November 2018. Given the apparent delay of a week after the hearing before the applicant approached the University for the information, the Tribunal declined to formally extend the time in which to provide further documents. The Tribunal explained to the representative that the Tribunal is obliged to consider any evidence provided by the applicant prior to the Tribunal making its decision.

12. On 25 October 2018 the applicant’s representative wrote to the Tribunal enclosing some of the information discussed at hearing and noting the applicant would provide more evidence when she received it. The applicant provided tax invoice/receipts from Edith Cowan University dated 24 and 27 April 2016; an email dated 31 May 2017 from Edith Cowan University to the applicant about clearing her encumbrance, paying fees and resuming her course; and an undated letter from the Officer in Charge of the National Police Service.

13. 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?

14. 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).

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

16. The delegate’s decision record summarises the applicant’s visa history. The applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa on 5 April 2016. The Department gave the applicant a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa on 22 May 2017 because evidence from the Provider Registration and International Student Management System (PRISMS) indicated the applicant had not been enrolled in a registered course since 28 April 2016. In her written response to the delegate’s NOICC, the applicant agreed that she was not enrolled in a registered course of study since 28 April 2016. The applicant gave oral evidence at hearing that she was not enrolled in a registered course.  

17. The Tribunal accepts the details contained in the delegate’s decision record and supported by the applicant.

18. 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

19. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

20. 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 and does the visa holder have a compelling need to travel to or remain in Australia.

21. The applicant gave evidence that her mother, father and little sister remain in Kenya. She has a brother who is a permanent resident in Australia living in Perth. She first came to Australia in 2010 and studied a Diploma in Community Services. In 2011 she enrolled in a Diploma in Nursing. The visa she obtained to complete the Diploma of Nursing remained current and in 2014 she enrolled in a Bachelor of Nursing and completed 2 ½ years before that visa expired. She applied for a further student visa which was granted on 5 April 2016. The applicant says that all she wants to do is study and get her degree so she can make a better life for herself. The applicant said she could do a Bachelor of Nursing in Kenya but does not know how long that would take. She said she had been doing some voluntary work for the Riverview church but no paid work. She lives with her partner with whom she has been in a relationship for 2 ½ years. The applicant said she had returned to Kenya once since 2010 to see her family for 3 weeks. The applicant doesn’t dispute that she has not been undertaking study since April 2016.

22. The Tribunal noted that the applicant was granted a Student visa on 5 April 2016 and that a little over 3 weeks later on 28 April 2016 her enrolment in a registered course of study ceased. The applicant denied that she enrolled in the course only in order to obtain the visa. That she was only enrolled for 3 weeks was a coincidence.

23. The Tribunal gives some weight to the fact that the applicant commenced her studies on arrival into Australia. She has outlined the reasons why she wants to obtain a qualification from an Australian education provider. Notwithstanding this, the Tribunal is mindful that the applicant was not enrolled in a registered course of study for a significant period of time. The Tribunal also notes that the applicant wants to remain in Australia as she does not want to return without a qualification. In spite of demonstrating that she came to Australia to study and stating that she wants to complete her studies to make a better life for herself the applicant could complete her studies in Kenya.

24. The Tribunal took into account whether the applicant has a compelling need to travel to or remain in Australia.

25. The applicant told the Tribunal that she lived with her partner of two and a half years. The applicant denied that being in a partner relationship was her purpose for remaining in Australia. He is a non-citizen permanent resident. She does not think he would return to Kenya with her. The applicant and her partner do not have any children. The applicant said her compelling need to stay in Australia was just that she wanted to finish her degree, the degree is her life and it’s all she wants to do. The applicant agreed she could do a Bachelor of Nursing in Kenya but did not know how long it would take to complete the course.

26. The Tribunal considers that the applicant could reasonably finish her degree in Kenya. There is no evidence that the applicant’s partner could not return to Kenya with her.

27. The Tribunal is not satisfied that the purpose of the applicant’s travel and stay in Australia or the applicant’s need to remain in Australia are compelling. The Tribunal weighs this factor in favour of cancellation.

    The circumstances in which the grounds for cancellation arose and whether there were circumstances beyond the applicant’s control leading to the cancellation.

28. The applicant’s written response to the delegate’s NOICC on 7 June 2017 said her father’s business got burnt down so he was not able to pay the applicant’s enrolment fees. Edith Cowan University (ECU) put an encumbrance on her. Her application for financial hardship was refused. Her father was in a position to meet the financial obligations and she had completed half of her nursing studies. Returning to Kenya would disrupt her studies and career ambitions.  

29. The applicant’s father’s affidavit dated 5 June 2017 said that in January 2016 he was “…unable to pay my aforementioned daughter’s University Fees due to unavoidable circumstances as indicated in the documentary then produced.” Mr Ngugi confirms he is now “…able, willing and/or ready to pay the fees… to ensure that my daughter finishes her studies”. The document produced was a Police Abstract form that appears to be dated 14 April 2016 and says that Mr Ngugi reported he was the owner and CEO of Evergreen supermarket and renovation hardware and had a loss of inventory through burglary, including his motor vehicle, which was lost on 28 January 2016.

30. The applicant gave oral evidence that the fire at her father’s business happened before Christmas 2015 because her father could not afford to buy her sister a special Christmas gift.

31. The Tribunal questioned the applicant about her description of the incident being a fire against the police description being a theft. The Tribunal was also concerned the police report indicated the incident occurred in late January 2016 while the applicant was certain the incident occurred before Christmas 2015. The applicant submitted the incident was both a fire and theft but could not explain the discrepancy in the dates of the incident.

32. After the hearing the applicant provided the Tribunal an undated letter from the Kenyan National Police Service seeking to clarify the earlier abstract. The letter explains the incident occurred on 18 December 2015 contrary to the previous abstract. The letter explains there was an error made by the officer on duty on that specific day.

33. The Tribunal notes the previous abstract referred to was dated 14 April 2016, some four months after the alleged incident.   The Tribunal further notes that the visa subject of this review was granted on 5 April 2016. The Tribunal considers it unlikely that the applicant’s father would wait 3 to 4 months to report the burglary to the police. The Tribunal is concerned that the police abstract would not include some reference to the destruction of the store by fire. The Tribunal considers neither of the Police reports are contemporaneous to the incident and cannot be relied on. The Tribunal is not satisfied that a fire or theft occurred to the applicant’s father’s business and attributes the documents from the Kenyan National Police Service no weight in its deliberations.  

34. The Tribunal was concerned that the applicant knew she could not afford to pay the ECU fees prior to commencing the course in April 2016. The applicant claimed she was hopeful her father was going to get a loan to enable the payment of fees in time for the beginning of the semester. The applicant gave oral evidence that she did not pay the last instalment and applied to ECU for financial relief. The applicant claims ECU agreed to her payment by instalments of 60%/20%/20%. She says she had only paid 45% by mid-March 2016. Receipts for payments to ECU show instalments were paid on 24 and 27 April 2016 totalling $5100. Correspondence from ECU to the applicant dated 31 May 2017 suggests there remained, some 12 months later an encumbrance for non-payment of fees.

35. The applicant agreed with the information in the delegate’s decision record that she had two previous student visa cancellations in 2011 and 2014 because of a failure to pay the required tuition fee. The applicant claimed her father sent the money late but the fees were ultimately paid. The Tribunal considers the applicant can reasonably be expected to have fully understood the consequences of her failure to pay the tuition fees on time.             

36. The Tribunal considers the cancellation of the applicant’s visa occurred because she did not pay the tuition fees as agreed and not because of fire or theft at her father’s business or any other circumstances beyond her control. The Tribunal weighs this factor in favour of cancellation.

    The extent of compliance with visa conditions.

37. The Tribunal explained the requirement to be enrolled in the course of study in order to satisfy the student visa requirements and that, by the time the delegate made its decision, a significant period of more than 12 months of non-enrolment had elapsed. The applicant conceded that she had previously had student enrolments cancelled because of her failure to pay the tuition fees. The applicant said she was committed to completing her nursing studies. The Tribunal finds that the applicant has not complied with the visa requirement to remain enrolled in the course of study and gives this factor some weight in favour of cancellation.

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

38. The applicant told the Tribunal she wanted to study so she could make a better life for herself. She said the degree was her life and all she wanted to do. She could complete the Bachelor of Nursing in Kenya but did not know how long it would take her. The degree is something she would like to have accomplished and it would cause her emotional distress not to do so.

39. The applicant said she lifts with her partner of 2 ½ years and they have no children. He is a noncitizen permanent resident of Australia. She does not know if he would return to Kenya with her.

40. The Tribunal accepts the financial cost of an Australian education is high, and failing to achieve a successful academic outcome is distressing. The Tribunal accepts that a cancellation of the applicant’s visa may cause her to be separated from her partner of 2 ½ years and accepts this may cause some emotional hardship to the applicant. The Tribunal gives the hardship that may be caused to the applicant and her partner some weight against cancellation.

    Past and present behaviour towards the Department.

41. There is no evidence before the Tribunal about any matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal has no reason to believe the applicants past and present behaviour is not appropriate. The Tribunal gives this no weight.  

    Whether there would be consequential cancellations under s.140.

42. The applicant has a partner who is in Australia on his own permanent residence visa. There are no other parties associated with the visa whose visa would be affected by the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences as a result of cancellation.

43. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant's visa to not be cancelled.

44. The Tribunal notes the applicant claims to have been in a partner relationship with a permanent resident of Australia for a number of years. The applicant could explore the option of applying for a Partner visa with the Department.

    Whether any international obligations would be breached as a result of cancellation.

45. There is nothing before the Tribunal to suggest that Australia’s international obligations would be breached by the cancellation of the applicant’s visa.

46. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    P. Maishman
    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.