Njoroge (Migration)

[2019] AATA 1637

Njoroge (Migration) [2019] AATA 1637 (17 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elsie Njeri Mutungi Njoroge

CASE NUMBER:  1711669

HOME AFFAIRS REFERENCE(S):           BCC2017/996614

MEMBER:Mark O'Loughlin

DATE:17 May 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 17 May 2019 at 4:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – enrolled in a course that did not commence – elected not to enrol in another course – 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 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training 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 was not enrolled in a relevantly registered course and was therefore in breach of mandatory condition 8202 of her Student Visa and further that the grounds for cancelling the visa outweighed the grounds for not cancelling. 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 1 May 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.

   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. The applicant had completed a diploma level course in nursing and had applied for a further visa to allow her to study an advanced diploma of nursing.  She gave evidence that she hoped ultimately to progress to becoming a registered nurse which would mean a further degree level course.

9. She had paid her fees and enrolled in an advanced diploma course in nursing with a focus on mental health, at an institution called Equals College.  When she presented herself on the first day of that course she was advised that there had been no other enrolments in her course and that it would not be offered.  Instead she was told she could enrol in something else.  The Tribunal accepts this evidence.

10. The applicant said that she was extremely disappointed by this news and was not interested in the other courses that Equals College offered.  She said that she approached the Department and was advised that she could enrol in another course within 3 months or she could apply for a different type of visa.

11. She said that she had been working at an aged care institute and that she went with someone from her employer to see a migration agent who advised her about options including the possibility of her being sponsored by her employer to stay.

12. She said that, although the agent cautioned that it could be risky to rely on an employer to set a visa application in train, she thought that that would be the best way to proceed and decided to take that approach.

13. She said that she preferred that to enrolling in another course and maintaining her student visa because she was confident that there was no course available in the area that she wanted to study.

14. She further said that she did still intend to study but that there was nothing appealing available to her at that time.

15. She said that she understood that her employer had matters in hand and that she checked from time to time.  She said she was assured that the application to sponsor her was proceeding.

16. Her evidence, which the Tribunal accepts, was that she continued to believe that she was entitled to continue working and was not required to maintain an enrolment to maintain her visa.

17. Shortly before she received notification from the Department about the possibility of having her visa cancelled, the HR manager at her workplace was fired.  She said that he told her he did not expect the sponsorship application to be pursued after he left.  She said that she was not the only employee in that position.

18. The Tribunal accepts the applicant’s evidence about the above matters.

19. The applicant said that her visa was cancelled in May 2017 which the Tribunal accepts.

20. The Tribunal accepts that the applicant had been enrolled in a course that was due to start in July 2016, but which did not actually start.

21. The Tribunal accepts that the applicant did not take up enrolment in another course.

22. The Tribunal accepts that the applicant has not been enrolled in a registered course since July 2016.

    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

23. 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’.

24. In submissions dated 4 May 2017 the applicant’s then representative advised that the applicant had assumed that (presumably in about July 2016), when she withdrew from the course with Equals and obtained a refund, her student visa had lapsed and that she had a bridging visa in respect of her potential employer sponsored visa.

25. That is consistent with her oral evidence and the Tribunal accepts that the applicant held those beliefs.  The Tribunal further accepts that the applicant was honestly mistaken in so believing.

26. The applicant gave evidence, which the Tribunal accepts, that she did not intend to stay in Australia without a visa.

27. The Tribunal also accepts the applicant’s evidence that, if her visa is not cancelled, she wishes to enrol in a degree level course to pursue nursing studies.

28. The Tribunal finds that in about July 2016 the applicant elected not to continue studying and to pursue employer sponsorship instead and believed that she was doing so until about May 2017.

29. The Tribunal finds that from about July 2016 to May 2017 the applicant chose not to study.

30. The Tribunal notes that since May 2017 she has been unable to study due to discretionary condition 8207 being placed on her bridging visas.

31. PAM 3 directs the Tribunal to have regard to a range of considerations.  One is the purpose of the applicant’s travel and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

32. The applicant gave evidence, which the Tribunal accepts, that she came to Australia for the purpose of studying and that she came with substantial assistance from her family in Kenya and with the expectation that she would succeed in her studies and return with improved career prospects.

33. The Tribunal accords this factor some weight in against the exercise of the discretion to cancel the applicant’s visa.

34. The Tribunal finds that, although the applicant did intend to study when she applied for the subject student visa, there were no relevant courses available to her and her intention to continue studying was replaced by the hope or expectation that she could remain in Australia with her employer’s sponsorship.

35. A further consideration is the extent of the applicant’s compliance with visa conditions.  There is no evidence of deliberate failure to comply with visa conditions but the Tribunal accords this factor some weight in favour of exercising the discretion to cancel because the applicant’s failure to comply with the condition that she be enrolled in a registered course reflected her intention to remain in Australia for reasons other than those contemplated by her student visa, namely that she study a registered course.  The Tribunal finds that the applicant stayed in Australia after about July 2016 to pursue work.

36. The Tribunal is also obliged to consider the degree of hardship that cancellation of the visa may cause including financial, psychological, emotional or other hardship.

37. The applicant gave evidence that she has had working rights while on her bridging visa and that she has been able to send money to her family in Kenya who are in some need.  The Tribunal accepts that the beneficiaries of her work have been her mother, father, brother, aunt and grandmother.

38. The Tribunal notes that if the applicant’s visa is not cancelled she will be obliged to incur the cost of enrolling in a further course and will have her hours of work restricted. The Tribunal is not satisfied that the applicant or her family will suffer immediate financial hardship if her visa is cancelled.

39. The applicant gave evidence that she now wishes to pursue degree level nursing studies in order to work as an RNS rather than an enrolled nurse as she does currently. 

40. The Tribunal accepts her evidence that she would need to get new qualifications to work as an enrolled nurse if she returns to Kenya whereas if she gets a degree there should be substantial recognition of that qualification in her home and she will be able to work there more easily.  To that extent the Tribunal accepts that the applicant, and perhaps her family, may suffer financial hardship in the future if the applicant’s visa is cancelled.  The Tribunal accords this consideration a little weight.

41. The applicant gave evidence that there was no other hardship that she or her family members are likely to suffer if her visa is cancelled and she goes home.

42. The Tribunal is obliged to consider the circumstances in which the ground of visa cancellation arose and whether it was due to circumstances beyond the applicant’s control.  The Tribunal finds that the circumstances of the cancellation of the applicant’s advanced diploma of nursing were beyond the applicant’s control but that there were steps that the applicant could have taken to remedy that, in particular that she could have enrolled in another course.

43. The Tribunal finds that the applicant was aware of that and had 3 months in which to do so.  There is no evidence that that was not sufficient time.  The Tribunal finds that the applicant in fact chose not to study and accords this factor some weight in favour of cancelling the visa.

44. The Tribunal finds that there is no evidence of any behaviour on the part of the applicant towards the Department that should prompt the Tribunal to exercise its discretion to cancel the subject visa, and accords this consideration some weight.

45. The applicant gave evidence that there would be no consequential cancellations if her visa is cancelled. 

46. The Tribunal is obliged to consider whether there will be mandatory legal consequences of a cancellation. 

47. If the applicant’s visa is cancelled she will be obliged to return to Kenya.  There is nothing to suggest that she would not be entitled to a bridging visa which would enable her to do so without entering detention.  The Tribunal accords this consideration no weight against the cancellation of the visa.

48. The applicant will be restricted in future visa applications to Australia and in particular will be subject to a 3 year exclusion from approval of any temporary visa applications. Given that this is an ordinary consequence of having a visa cancelled, the Tribunal accords this consideration a little weight against cancelling the visa.

49. There is no evidence of any international obligations including non-refoulement or the best interests of children,that would be breached as a result of cancellation.  The Tribunal accords this factor no weight against the cancellation of the visa.

50. There were no other relevant matters that were brought to the attention of the Tribunal in relation to the cancellation of the applicant’s visa.

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

    DECISION

52. 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.