Njoroge (Migration)

[2022] AATA 1686

Njoroge (Migration) [2022] AATA 1686 (15 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Allan Njoroge

CASE NUMBER:  2005369

HOME AFFAIRS REFERENCE(S):          BCC2019/5364513

MEMBER:Joseph Lindsay

DATE:15 February 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 15 February 2022 at 12:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – ground for cancellation conceded – discretion to cancel visa – stress because of mother’s death and aunt’s and father’s illnesses – remained unenrolled for some time after receiving department’s notice – current enrolments at lower levels and in different subject area – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The applicant attended an audio hearing with the Tribunal on 3 November 2021 to give evidence and present arguments.

3. 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

4. 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 (Cth) (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?

5. 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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record dated 16 March 2020. The Tribunal has considered the delegate’s decision record. In the hearing, the Tribunal spoke with the applicant about the decision record. The applicant confirmed that all of the information in the decision record was true and correct.

8. The Tribunal put to the applicant that the information in the decision record stated that the applicant had not been enrolled in a fulltime registered course since 21 November 2018. The Tribunal then referred to recent documentation that the applicant provided to the Tribunal. The Tribunal referred to an email from the applicant dated 1 November 2021, including four Confirmation of Enrolment (COE) documents dated 17 March 2021 in respect to four courses – a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management.

9. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study between 21 November 2018 and 17 March 2021. Accordingly, the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

   Consideration of the discretion to cancel the visa

10. 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 Instruction ‘General visa cancellation powers’.

    The circumstances in which the ground for cancellation arose

11. In the hearing, the Tribunal discussed the applicant’s circumstances and asked him why he had not been enrolled in a registered course of study between 21 November 2018 and 17 March 2021.

12. The applicant said he had arrived in Australia in approximately April 2017 to undertake a course in Information Technology. He said he had intended to undertake a Bachelor’s degree in Computer Science. The applicant said he had been going through a stressful time. When asked why he experienced stress in 2018, the applicant said he got stressed from circumstances back in his home country. He said his mother had passed away before he left his home country to come to Australia. The applicant then said in 2018 his aunt became ill.

13. When the Tribunal asked the applicant if he spoke to his course provider about the stress he was feeling in 2018, he said he did speak to his course provider about his circumstances. When asked if he had any documentation about his discussions with his course provider, he said there was some emails.

14. The Tribunal referred to the response that the applicant provided to the Department on 25 February 2020 that states:

    I am writing this letter in response to the notice received on 20th February. The year 2019 has been a tough year for me due to a medical issue that involved my father travelling overseas for treatment. I know staying in class is a key condition for my visa but after losing my mother in 2017 before coming to Australia, I got worried and stressed about losing another parent.

    Due to the emotional state I was in, it became tough to concentrate in class and when on further to falling ill at the end of 2019. After several visits to the doctor they found nothing wrong me and finally after a conversation of what was happening back home and recommended to see a specialist or to trust in someone. Documents on my illness can provided upon request.

    On November 2019 my prayer was answered, and my father had a quick recovery. now after a discussion with my brother 2020 is the time to resume my studies, I plan to join in the June intake to continue with my diploma and hopeful move on to bachelor as well.

    My prayer is that you reconsider your decision about my visa and give me a chance to complete my education and fulfil my parents dream and my dream as well to get a bachelor’s degree.

15. The Tribunal referred to the applicant’s letter and noted that he had referred to his circumstances in 2019. However, the Tribunal put to the applicant that his course provider had cancelled his enrolment in 2018, and asked the applicant to explain what his circumstances were in 2018 – which was the time period in which he claimed that there were circumstances that caused him problems with his studies. In response, the applicant said his father was ill at this time in 2018.

16. When the Tribunal asked the applicant whether he understood that he was required to abide by his visa conditions, he said in response that he understood that he was required to abide by his visa conditions.

17. When the Tribunal asked the applicant if he told the Department he was experiencing problems in 2018, he said he did not tell the Department and only told his course provider.

18. The Tribunal put to the applicant that it may find that while the applicant may have experienced stress due to his mother passing away, and due to his aunt becoming ill as well as his father becoming ill, he was still ultimately responsible to take reasonable steps to remain enrolled and maintain compliance with his visa conditions. In response, the applicant said after his course was cancelled he did not have an enrolment. He said he was still trying to figure out whether Computer Science and Information Technology were suitable courses for him. The applicant indicated that after some time he decided he wanted to enrol in a cookery course in order to maintain compliance with his visa conditions.

19. When the Tribunal asked the applicant whether he had a medical condition, he said he had depression and anxiety. When asked if he had a medical diagnosis for depression and anxiety, the applicant said he had seen a psychologist. The applicant said he would be able to provide documentation about his psychological treatment as well as a medical diagnosis for depression and anxiety.

20. The Tribunal notes that on 4 November 2021 the applicant provided further information to the Tribunal. The applicant provided:

    -An invoice dated 31 December 2019 in respect to his admission to Fiona Stanley Hospital on 19 December 2019.

    -An invoice dated 31 December 2019 in respect to his admission to Fiona Stanley Hospital on 17 December 2019.

    -An invoice dated 8 January 2020 in respect to an x-ray “Chest (lung fields) by direct radiography” at Fiona Stanley Hospital on 17 December 2019.

    -A claim to Bupa dated 23 January 2020 for the x-ray on 17 December 2019.

    -A receipt from Western Diagnostic Pathology dated 19 December 2019 that appears to be in respect to pathology tests.

    -A receipt from Dr James Little dated 15 April 2021 for “GP Mental Health Care Consultation.”

    -A receipt from Dr Ademola Davies-Hakeem dated 23 December 2020 for “Surgery consultation, Level B.”

    -Emails between the applicant and Ms Judith D’Costa, Team Leader, International Student Services, South Metropolitan Tafe, dated between September and October 2018. 

21. In respect of the above, the Tribunal makes the following findings.

22. The Tribunal accepts that the applicant may have experienced stress due to his mother passing away, and due to his aunt becoming ill as well as his father becoming ill. The Tribunal accepts that the applicant did interact with his course provider in 2018 in respect to the difficulties he was having.

23. However, the Tribunal is not satisfied that the applicant took reasonable steps to remain enrolled and maintain compliance with his visa conditions. The Tribunal finds that it was reasonable to expect that the applicant to discuss his issues with the Department, and not limit his efforts to the discussions he had with his course provider.

24. The Tribunal finds that the applicant remained in Australia without an enrolment for a substantial period of time before he received the Notice to Consider Cancellation from the Department in early 2020. Even then, the applicant did not obtain another enrolment until 17 March 2021.

25. The Tribunal accepts that the receipt from Dr James Little dated 15 April 2021 for “GP Mental Health Care Consultation” indicates that the applicant may have a medical diagnosis of a mental health condition but it is not clear what that condition might be. The Tribunal accepts that the applicant may have had a physical health condition at around the end of 2019. However, in considering this evidence, the Tribunal is not satisfied that the applicant’s circumstances as to why he ceased being enrolled in 2018 are significantly affected by either physical or mental health conditions for which he may have sought treatment after 2018.  

26. In balancing the evidence, the Tribunal accepts that various instances can impact on a person’s well-being from time to time. However, in balancing all of the circumstances, the Tribunal finds that the applicant did not take reasonable steps to maintain his enrolment, and that as the visa holder he was required to abide by the conditions of his visa which included maintaining his enrolment in accordance with visa condition 8202. The Tribunal is not persuaded that the applicant’s circumstances were beyond his control in respect to his ability to maintain his enrolment. Accordingly, the Tribunal places high weight on this information against the applicant.

    The purpose of the visa holder’s travel to and stay in Australia; whether the visa holder has a compelling need to travel to or remain in Australia

27. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was initially to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal places no weight on this information.

    The extent of compliance with visa conditions

28. The Tribunal accepts that the applicant appears to have generally complied with his other visa conditions. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

29. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled. In response, the applicant indicated that he would feel like a big letdown for his father, and that going back home would be big disappointment.

30. The Tribunal accepts that there may be some disappointment caused to the applicant and his family if the applicant’s visa was cancelled and gives this matter some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

31. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

32. The applicant does not have any dependants on his student visa who would be affected if his student visa was cancelled. Accordingly, the Tribunal places no weight on this information.

    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

33. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

34. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Kenya.

35. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

36. The Tribunal places some weight on this information 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

37. The Tribunal asked the applicant if he feared anything in returning to Kenya. In response he indicated that he had no fears if he went back to Kenya. Accordingly, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information.

    Any other relevant matters

38. In respect to whether there were any other relevant matters he wished to discuss, the applicant said that he knows that he has not abided by his visa conditions. The applicant requested another chance to complete his hospitality course. The Tribunal places some weight on this information in the applicant’s favour.

    Conclusion

39. In balancing the circumstances above, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Joseph Lindsay
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.