NJERI (Migration)

[2020] AATA 599

NJERI (Migration) [2020] AATA 599 (26 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms JUDY WAMBUI NJERI

CASE NUMBER:  1913568

HOME AFFAIRS REFERENCE(S):          BCC2019/302508

MEMBER:Vanessa Plain

DATE:26 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 26 February 2020 at 7:32pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – Australian citizen child – abandoned by spouse – applicant in control of breach – no evidence regarding custody – can return to home country with child – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 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 the applicant did not comply with a condition of her visa, namely, she did not maintain enrolment in a registered course.  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. By letter dated 31 January 2020, the Tribunal wrote to the applicant and invited her to attend before the Tribunal on 18 February 2020 for a hearing.  On 4 February 2020, the Tribunal received an email from the applicant’s registered migration agent in which the applicant advised that she did not wish to attend a hearing and a request was made to determine the matter on the papers.  The Tribunal advised the migration agent that the matter would be determined without the requirement for the applicant to attend and it would be determined based upon the material currently before the Tribunal.

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. An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 573 visa on 4 July 2016 for the purpose of undertaking a Diploma of Nursing.

9. Information available to the Department in the PRISMS system administered by the Department of Education and Training indicated that the applicant had not been enrolled in a registered course since 8 May 2018, therefore, the applicant did not meet the requirements of condition 8202(2).

10. A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 1 April 2019.

11. The applicant responded to the NOICC in writing on 23 April 2019 by way of a letter from her immigration lawyer, Mr Ray Turner, principal solicitor at Turner Coulsen Immigration Lawyers.  In that response, the applicant agreed she ceased studying and provided various reasons as to why her visa should not be cancelled, namely:

    (a)Her daughter, who is an Australian citizen, was born on 24 August 2018;

    (b)The birth of her daughter and the subsequent abandonment of her and her daughter by her Australian citizen husband (and father to her daughter) was the reason she ceased studying; and

    (c)She has instructed her lawyers to lodge a sponsored regional visa as soon as possible.

12. On 15 May 2019, a further response to the NOICC was sent by the applicant’s lawyers to the department.  In that response, the applicant provides:

    (a)She is not in a position to move forward RSMS application, she is the mother of an Australian citizen child and acknowledges that the cancellation of the student visa will occur;

    (b)Once the cancellation is received, she will lodge an appeal to the AAT to access the Minister’s intervention powers under section 351 of the Migration Act 1958; and

    (c)She could potentially make a complementary protection visa application, but given the current circumstances, reserves this option as a ‘back-up strategy’ in the event that the Minister elects not to intervene. 

13. In support of the above contentions, the applicant provided documentary evidence of her child’s birth, her marriage and her husband’s citizenship status. 

14. Based upon the matters set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 8 May 2018 and accordingly, compliance with condition 8202(2) is not met.

    Consideration of the discretion to cancel the visa

15. 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.

16. 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’.

    Purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia 

17. The applicant initially arrived in Australia as the holder of a Student visa (TU 573) for the purpose of undertaking a Diploma of Nursing.   

18. Based upon the admissions made by the applicant in her NOICC responses, it is clear that the purpose for which the visa was granted ended on 8 May 2018.  The Tribunal considers the applicant’s modest period of study before the cancellation of her enrolment favourably, however, it is clear that after her enrolment was cancelled, she continued to reside in Australia in breach of her visa condition for a period of well over 12 months.

19. The matters set out in the applicant’s NOICC responses di not indicate that she has any intention to return to study and on that basis, the Tribunal is of the view that the applicant’s purpose for being onshore is no longer in line with the purpose for which the visa has been granted.

20. Further, given that the applicant has an estranged spouse and a young child who are Australian citizens, I find these that these circumstances provide a compelling incentive for the applicant to remain in Australia permanently, rather than reside temporarily for the purpose of study. 

21. The Tribunal gives these factors some weight towards the visa being cancelled.     

    The extent of compliance with visa conditions

22. The applicant has not complied with condition 8202(2).  The applicant has provided reasons for the breach which are set out above.

23. The Tribunal notes that there is no evidence before it of non compliance with other visa conditions.

24. However, the period of time over the applicant has been in breach of her visa condition is substantial and this has occurred in circumstances where she has provided no evidence as to whether the applicant took steps to defer her course, or seek professional advice from a migration agent or lawyer, or whether she contacted the department to inform them of her situation. 

25. The Tribunal therefore cannot be satisfied that the breach of the visa condition occurred due to compelling circumstances that were beyond the control of the applicant, because based on her NOICC responses, it appears as though it was reasonably open to the applicant to seek to defer her course for compassionate reasons, or contact immigration, or see a guidance counsellor, or a lawyer.  Based upon the applicant’s reasons for the breach, the Tribunal is not satisfied that having a child and relationship difficulties are compelling reasons for breaching a visa condition that are beyond the applicant’s control and were the actual cause of the breach. 

26. The Tribunal these factors some minor weight in favour of the visa being cancelled.

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

28. In the applicant’s NOICC responses, she has not spoken of specific hardship.  She stated that she wished to appeal to the Tribunal and obtain a decision that will enliven the Minister’s public interest powers to intervene on her behalf.  She has not articulated in her NOICC responses the basis upon which it is contended that her circumstances would warrant intervention by the Minister.

29. Moreover, there is no evidence before the Tribunal as to whether the applicant has lodged a protection visa application, which she acknowledged was a ‘back-up’ plan in her NOICC responses.  

30. The applicant contends that the relationship breakdown and birth of her child are the reasons for the cessation of her studies.  The Tribunal acknowledges that she has endured some hardship as a result of these matters and may suffer further hardship as a result of the visa cancellation. 

31. Based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a minor weight towards the visa not being cancelled. 

    Circumstances in which ground of cancellation arose

32. The circumstances that led to the breach of the visa condition are set out in the applicant’s responses to the NOICC in paragraphs 11 and 12 above. 

33. The Tribunal cannot be satisfied that the reasons for the breach of the visa condition arose as a consequence of compelling circumstances that were outside of the control of the applicant. 

34. The reason the Tribunal cannot be satisfied is that the applicant has not submitted any evidence as to what steps she took, as a result of the impending and subsequent birth of her child and her relationship breakdown, to ensure that she wouldn’t be in breach of her visa condition, or what steps she took to try and rectify her breach.

35. On the basis of these matters, the Tribunal finds that the reason for the breach was reasonably within the control of the applicant and I therefore give this weight towards the visa being cancelled. 

    Past and present behaviour of the visa holder towards the Department

36. The applicant has conducted herself in good faith in her dealings with the Department.  This is demonstrated by the fact that she responded immediately and frankly to the NOICC.  I give this some weight in favour of the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

37. The applicant gave evidence that her husband and child are Australian citizens, therefore, their visas would not be consequently cancelled as a result of her visa being cancelled. 

38. The Tribunal therefore gives this no weight in favour of the visa not being cancelled. 

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

39. If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if she does not depart the country.  However, these are mandatory consequences of the legislation and in view of the fact that I have found that the reason for the breach of the visa was reasonably within the control of the applicant, I give this little weight in favour of the visa not being cancelled.   

    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

40. The applicant’s child is an Australian citizen.  The applicant has not stated in her NOICC responses that she would be separated from her child if she had to leave the country as a result of her visa cancellation.  It is therefore reasonable to infer that it is open to the applicant to return to her home country with her daughter.

41. There is no evidence before the Tribunal as to the applicant’s husband’s attitude to obtaining custody of the child in Australia. 

42. The Tribunal affords these matters some minor weight against cancelling the visa.

    Any other relevant matters

43. The applicant has evinced an intention to apply for a permanent protection visa as a means of staying in the country.  She has further indicated that she will seek Ministerial intervention in her case.  However, she has not provided any reasons as to why she proposes to take these steps and on that basis, I give these matters no weight against cancelling the visa.    

44. Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.

45. It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.

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.

    Vanessa Plain
    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.