NYAOMA (Migration)

[2019] AATA 6614

NYAOMA (Migration) [2019] AATA 6614 (11 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms STELLAH MORAA NYAOMA

CASE NUMBER:  1817165

HOME AFFAIRS REFERENCE(S):          BCC2018/931273

MEMBER:Joseph Lindsay

DATE:11 December 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 11 December 2019 at 2:03pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – genuine student – subsequent completion of qualification – enrolment – not enrolled in a registered course – consideration of discretion – steps taken to maintain enrolment – subsequent actions – decision under review set aside

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 5 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(fa)(i) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not a genuine student. 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 11 December 2019 at 12:30pm to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The delegate found that the applicant was not a genuine student in accordance with s.116(1)(fa)(i) of the Act. However, the Tribunal is able to make a de novo review as has chosen to do so.

6. During the hearing, the Tribunal discussed with the applicant her student enrolment history.

7. The applicant made full admissions that she had not been enrolled in a registered course of study between 18 September 2017 and 20 March 2018. However, the applicant gave further information to the Tribunal not available to the delegate at the time of their decision. This new information is that the applicant has subsequently completed a Diploma of Leadership and Management at the Institute of Business and Management in 2019. This record is reflected in the Provider Registration and International Student Management System (PRISMS).  On that basis, the Tribunal is not prepared to find that the applicant is not a genuine student. However, the Tribunal does find that the applicant was not enrolled in a registered course of study between 18 September 2017 and 20 March 2018 and in doing so the applicant did not comply with condition 8202(2)(a).

8. Accordingly, 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

9. 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’

   The circumstances in which the ground for cancellation arose

10. The Tribunal acknowledges the written submissions provided to the Tribunal on 22 November 2019 and on 21 June 2018 where it was explained, in summary, that the applicant had struggled to study in 2017 when her parents in Kenya were adversely affected during the 2017 elections. Her parents’ business was burned down and this caused a lot of stress to the applicant.

11. In the hearing the applicant indicated that she was deeply depressed, but that she did not talk to her provider or the Department about her problems. She said that during the six months she was not enrolled she became involved with church activities. She claimed to be a Seventh Day Adventist and she was very religious. She was in Perth during that time.

12. She claimed that her parents have recovered from their situation and they now have their business back in operation. She indicated that her brother in Canada helps her financially. She indicated that her brother paid for the Diploma she completed this year and that he will financially support her and pay the course fees for her enrolment in an Advanced Diploma.  She claimed that after she completes the Advanced Diploma she plans to return to Kenya to operate a fast food business in her home town in Kenya. She said she had worked as a disability support worker in Australia, but that before she left Kenya she had worked at a five star hotel in Mombasa, Kenya.

13. She clearly stated that she does not fear anything if she went back to Kenya in the foreseeable future. She made very clear that she wants to return to Kenya after completing her Advanced Diploma in 2021.

14. The Tribunal makes the following findings.

15. The Tribunal does not accept that the applicant took reasonable steps to manage her student enrolment and the circumstances as to why she ceased to be enrolled between 18 September 2017 and 20 March 2018 were not beyond her control.

16. However, the Tribunal places heavy weight on the subsequent actions of the applicant to prove that she is genuine about actually completing a course of study whilst on a student visa where she completed the Diploma this year. The Tribunal accepts that to achieve this outcome, the applicant must have access to the requisite financial resources to support herself and pay her course fees and that she is likely to have access to the requisite financial resources to support herself and pay her course fees in the future in respect to the Advanced Diploma.

17. The Tribunal has decided to exercise its discretion in favour of the applicant and that she should be given a last chance.

18. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Joseph Lindsay
    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.