Nguyai (Migration)

[2019] AATA 6441

Nguyai (Migration) [2019] AATA 6441 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Daisy Wamboi Nguyai

CASE NUMBER:  1820321

HOME AFFAIRS REFERENCE(S):          BCC2018/1059563

MEMBER:Mark O'Loughlin

DATE:17 October 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 17 October 2019 at 3:50pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – enrolment – obtained deferment – lack of evidence – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 359A
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 July 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 breached condition 8202 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 applicant appeared before the Tribunal on 16 September 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 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.

6. In considering this matter the Tribunal had regard to the following documents provided by the applicant;

   a.delegate’s decision dated sixth of July 2018;

   b.copies of documents provided at hearing being email from Torrens University student services to applicant dated 12^th of July 2017 regarding complaint, Commonwealth ombudsman to applicant email dated 20 September 2017, 2019 international student application form Kaplan business School being applicant’s application to study the master of business administration in 2019, application by visa holder to study bachelor of social work dated January 22 2018, email from Equals 13 March 2019 re-application to study diploma of mental health, applicant’s application to Victoria University study community development dated 22 January 2018, Southern Cross education Institute letter of offer in diploma of community services dated 18^th of June, 2018;

   c.submissions Goz Chambers lawyers undated but provided under cover of email Wednesday fourth of July 2018 together with CoE for diploma of community services starting 26 July 2018,

   d.letter from [Dr A] dated 24^th of February 2016;

   e.letter from [Dr A] to [Mr B] dated 19^th of April 2017 and mental health plan of the same date;

   f.further email submissions from the applicant to the Tribunal dated 10^th of October 2019 and enclosures including note from [Dr A] of 18 May 2016.

7. The Tribunal further had regard to PRISMS records that will put to the applicant in a way that complied with section 359A. The applicant’s email of 10 October 2019 was in response to that notification.

8. The Tribunal did not have regard to any other documents in making this decision.

   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).

10. The applicant gave evidence that she arrived in Australia on 17 February 2014.

11. She said that she started studying a Bachelor of social work which she did for two years then transferred to a Bachelor of applied public health. She said that when she started the Bachelor of applied public health at Torrens University she had some course credit prior study and that she was expecting that the course would take her about 2 ½ years.

12. The applicant’s evidence was that she started the Bachelor of applied public health in about May 2016. She said that after she had done two semesters she became ill at the beginning of the 2017 academic year.

13. She said that in about February or March 2017 she obtained a deferment due to her illness.

14. She said that that deferment was for about six weeks then she returned to study and did a full semester before she again became ill.

15. Presumably this would have been in about the middle of 2017 if the applicant’s recollection is accurate.

16. She said that she was diagnosed with [Medical Condition 1], which would cause her to [information deleted]. She said that she was attending [Clinic 1] at [a] Hospital and was also under the supervision of her [Dr A].

17. She said [Dr A] also referred her to a psychologist, [Mr B], who she saw about three times because of stress due to her health problems.

18. She said she believed that that was in February or March 2017 although it may have been April.

19. She said that she returned to university in about May 2017 for another semester which she was able to complete with some difficulty but that about halfway through the following semester, third semester, she again became ill with [Medical Condition 1]. She said that that was in October 2017.

20. The Tribunal noted that the delegate had found that she was not enrolled from August 2017 and wondered whether her recollection of ceasing study in October 2017 may be inaccurate.

21. The applicant insisted that the delegate’s finding was wrong and that she was studying up until October 2017.

22. The applicant gave evidence that she obtained a deferment until February 2018 but that when she attempted to reenrol in university she could not and that the University wished to speak to [Mr B] to get an all clear.

23. She understands she was given all clear but when she tried to reenrol she was told that it was too late.

24. The applicant said that she complained to the University and to the ombudsman but that her complaints did not bear fruit.  She gave evidence that this took place in early 2018.

25. The Tribunal noted that the applicant had provided correspondence with the ombudsman that was dated July 2017 rather than early 2018. The Tribunal also noted that her former representative’s submissions suggested that she had become ill and sought deferment in June 2017 whereas her evidence had been that she was still studying at that stage.

26. The Tribunal asked whether her recollection of the relevant dates may be inaccurate and after some consideration she conceded that she may have been about one year out.

27. She said that the department had sent her a notice of intention to consider cancellation of her visa on 4 June 2018. She apparently assumed that this supported the timeline that she had adopted in her evidence. The Tribunal does not find that it does so.

28. The Tribunal pointed out that the applicant’s former representative had submitted that the applicant had studied until about July 2017.

29. The applicant said that she had obtained a further CoE at about the time of the notice of intention to consider cancellation.

30. The Tribunal notes that the prisms records suggest the applicant obtained a CLOE in a diploma of community services to start on 26 July 2018 and that the delegate’s decision refers to that in the seventh paragraph of page 3.

31. The applicant gave evidence that she did not in fact start that course. Her email submissions 10 October 2019 say that Southern Cross cancelled the CEO “saying that my name was blacklisted and that I should sort out the issue with Torrens first so that I can be accepted.”

32. The issue with Torrens University was apparently that she had made a formal complaint to the University and had also complained to the ombudsman.

33. The Tribunal acknowledges that the visa holder’s enrolment history has been complicated but notes that despite her initial confidence that she was studying up to at least October 2017, the applicant cannot confidently deny that her enrolment was cancelled on 28 August 2017.

34. It appears that although the applicant never returned to study after that, she was enrolled in a Diploma of community services for a brief period from about 21 June 2018. That enrolment was for a course due to start on 26 July 2018. The applicant still held that enrolment at the time of the delegate’s decision on 6 July 2018 but the enrolment was cancelled before the course started.

35. The Tribunal is satisfied that the applicant was not enrolled for the purposes of condition 8202 from 28^th of August 2017 to about 21^st of June 2018.

36. 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

37. 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’

38. The applicant (or visa holder) gave evidence that she came to Australia to study and that she hoped to use her qualifications to promote a career. The Tribunal notes that even outside the times that the applicant can show that she was unwell her progress has been so limited the Tribunal accords this factor no weight.

39. There is no evidence of a compelling need for the visa holder to travel to or remain in Australia other than for study and the Tribunal accords this factor some weight in favour of the application.

40. The visa holder did not comply with condition 8202(2) for about 10 months.  The Tribunal finds that this is a significant failure and although there is no evidence that there have been breaches of other visa conditions or breaches on other occasions, the Tribunal accords this factor no weight in favour of the application.

41. The Tribunal finds that if the visa holder’s visa is cancelled she may be compromised in her career and thus restricted in her stated intention to repay her father the cost of her education.

42. The applicant said that her father works for a bank in Kenya and is fairly comfortable financially.  She could not say how much he had contributed to her schooling or how much she has to repay him.

43. The Tribunal finds he suggestion that cancellation of her visa will represent a financial hardship to the visa holder’s father is speculative and accords it little weight.

44. There is no evidence of other hardship that the visa holder or her family will suffer if her visa is cancelled. The Tribunal accords this factor no weight in favour of the application.

45. The Tribunal finds that the applicant’s evidence about the circumstances in which the grounds for cancellation arose is not reliable.

46. The Tribunal finds that the applicant’s enrolment was cancelled on 28 August 2017.  The applicant gave evidence that her enrolment was cancelled in about February 2018 after she became unwell.  She initially insisted that her illness was after 28 August 2018 and that she was still enrolled and studying at that time.  She later said that her estimates of the relevant timings were probably about one year out.

47. The evidence that the visa holder presented showed that she was suffering a period of [medical conditions] at the time of preparation of the Mental Health Plan by her GP on 19 April 2017.  The applicant’s evidence about that was that she had 3 consultations with a psychologist.

48. The applicant also provided a medical certificate from the same GP saying that the applicant was suffering a “medical condition” and would require a short leave of absence from 18 May 2016.

49. The applicant had been diagnosed with [Medical Condition 1] by her GP and was referred to the [Clinic 1] at the [Hospital] on 24 February 2016.

50. At the hearing the applicant was offered the opportunity to provide further evidence to support the oral evidence that her enrolment was cancelled in August 2017 due to illness.

51. None of the evidence that the applicant ultimately provided does suggest illness at or shortly before 28 August 2017. The closest evidence of illness prior to that time is of mental illness which is referred to in the mental health plan of 19 April 2017.

52. That mental health plan does not mention the applicant’s [Medical Condition 1] although it is clear that she had been diagnosed with [Medical Condition 1] by the end of February 2016 about 14 months before the mental health plan was prepared.

53. Based on the evidence that the plaintiff has provided it does not appear that the [Medical Condition 1] was acute on 19 April 2017 and there is nothing to suggest that it became acute thereafter.

54. The applicant does not suggest that the mental health health issues from which she was suffering in April 2017 were what disabled her from study in August 2017.

55. The Tribunal is not satisfied that the ground for cancellation arose from the applicant’s illness.

56. The Tribunal is not satisfied that the grant cancellation arose from circumstances outside the visa holder’s control. The Tribunal accords this factor no weight in favour of the application.

57. The Tribunal notes that the applicant complained about the cancellation of her visa to both the University and to the ombudsman but the applicant has not suggested nor led any evidence to suggest that her complaints were upheld. The Tribunal draws no conclusion from the simple fact that the applicant made those complaints.

58. There is nothing in the visa holder’s past and present behaviour to suggest that she has been uncooperative in her dealings with the Department. The Tribunal has found that the applicant’s assertions in respect of the cancellation of her enrolment are not supported by evidence and does not find that they are truthful. However, the Tribunal does not exclude the possibility that the applicant was confused and does not find that her want of truthfulness was deliberate. The Tribunal accords this factor no weight in favour of the application.

59. There is no evidence that any other persons visa would or may be cancelled under s.140 if the applicant’s visa is cancelled.

60. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

61. She will need to apply for a bridging visa. She may become liable to detention under s.189 and to removal under s. 198 if she does not get a bridging visa or leave voluntarily.

62. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean she will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

63. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

64. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

65. The Tribunal has weighed the considerations set out above together and finds that, although the applicant suggests that the grounds for cancellation arose from matters beyond her control she has failed to demonstrate that. 

66. The Tribunal is not satisfied that the applicant has pursued studies assiduously and would expect her to do so if she were motivated by a desire for sure study and return to her home in Kenya.

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

    DECISION

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

    Mark O'Loughlin
    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.