Otieno (Migration)

[2019] AATA 5978

Otieno (Migration) [2019] AATA 5978 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr John Kennedy Otieno

CASE NUMBER:  1820659

HOME AFFAIRS REFERENCE(S):          BCC2018/952186

MEMBER:Michael Biviano

DATE:11 September 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 573 Higher Education Sector visa.

Statement made on 11 September 2019 at 11:24am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher – Bachelor of Nursing – not enrolled in registered course for ten months – non-payment of fees – financial difficulties – illness in family – death in family – paid for family member’s medical expenses – emotional issues – attempted to gain enrolment – circumstances beyond applicant’s control – 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 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 he had not been enrolled in a registered course of study from 6 September 2017 and he was not compliant with condition 8202 of the visa. The delegate went on to consider the factors in favour of cancellation outweighed those against cancellation. 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 3 June 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 set aside.

   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. The decision record of the delegate of the Department of Home Affairs dated 6 July 2018 which was provided to the Tribunal by the applicant, sets out the considerations of the Department in making its decision (Decision Record).

8. The applicant is a 25-year-old Kenyan national. He arrived in Australia on 22 July 2014, after obtaining a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 14 July 2014 to study a Bachelor of Early Childhood Education at Holmesglen Institute.

9. The applicant completed two semesters of the bachelor’s degree but failed the practical placement. The applicant sought advice and consulted with student counselling and they recommended to him that he would be better working with patients who are older rather than children and they recommended that he change course and undertake a Bachelor of Nursing. In 2016, the applicant enrolled in a Bachelor of Nursing at Holmesglen Institute.

10. The applicant gave evidence that his studies in the bachelor’s degree appeared to have been travelling well:-

    a.He passed all four subjects in first semester in 2016;

    b.He passed three of four subjects in the second semester in 2016, and the subject he failed was a compulsory subject which he was required to re-sit the following year;

    c.He passed the one subject of Lawyers/Ethics with Professional Practice, which was the entire workload for the first semester in 2017;

    d.He was enrolled to study four subjects in the second semester in 2017.

11. However there were several matters that interrupted his studies in the second semester of 2017.

12. Firstly the applicant’s grandfather with whom he was very close became ill towards late mid to late 2017. His grandfather’s condition was serious and deteriorated to the extent that on 15 November 2017, he passed away.

13. Further at the same time the applicant’s father had renal failure and required urgent expensive medical attention and was hospitalised.

14. The financial consequences of both the applicant’s father and grandfather being hospitalised, placed the family under financial stress to meet the medical expenses of both the applicant’s father and grandfather.

15. The applicant gave evidence that he had only part paid his tuition fees for semester 2, 2017 and his family had been assisting him with meeting his tuition fees. As a consequence of his family struggling back home, he sent money that he was earning from his job working at a nursing home in Melbourne, back home to look after the medical expenses for the family. The consequences of sending money back home and his family’s financial difficulties were that he was unable to meet his tuition fees at Holmesglen Institute. This resulted in his enrolment being cancelled.

16. Secondly the applicant claimed that as a consequence of his father’s medical condition and the deterioration in his grandfather’s condition, which resulted in him passing away in November 2017, the applicant, and his family’s poor financial position, he became stressed and depressed. He did not tender medical evidence of that condition. The applicant claims that he had tried to book counselling at the time of the events but was unable to do so. He tendered emails from Holmesglen Student Services arranging for a session with student counsellors which did not proceed during November and December 2017. The Tribunal accepts that the applicant is likely to have been stressed by the circumstances back home and it would have affected his ability to study the Bachelor of Nursing.

17. The applicant accepted in evidence that he was not enrolled in a registered course from 6 September 2017 up until his visa was cancelled on 6 July 2018. He provided in evidence an email that he provided to Sandra Barboza, Manager, Compliance & Student Administration International Centre, Holmesglen on 11 September 2017 confirming that his enrolment had been cancelled the previous week and seeking confirmation as to what options were available to him.

18. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 6 September 2017 up until his visa was cancelled on 6 July 2018. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

19. 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 of Home Affairs’ Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

    The 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

20. The applicant gave evidence that he came to Australia to study and undertake a Bachelor of Early Childhood Education at Holmesglen Institute and he changed his course of study.

21. As discussed above the applicant was unable to complete the second semester of the second year in the Bachelor of Nursing due to not being able to meet his tuition fees due to financial and serious health issues at home in Kenya, he being required to remit funds back to Kenya to meet family medical expenses back home, depriving him from meeting his tuition fees. Further the applicant was further suffering from stress arising from these matters.

22. The applicant gave evidence that during the period of September 2017 and January 2018, he worked to raise funds to continue to meet the family medical expenses back home, his grandfather’s funeral expenses and travel costs to return to Kenya.

23. The applicant claims that in early 2018, he undertook enquiries with Deakin University, Federation University, Australian Catholic University and RMIT, to complete a Bachelor of Nursing. The applicant was unsuccessful in gaining entry to those institutions primarily because they had concerns about his status as a genuine temporary entrant or his ability to meet entry requirements for that particular institution.

24. The applicant persisted with seeking to gain enrolment. The applicant tendered evidence being emails exchanged with Deakin University in June and July 2018 to gain enrolment in January 2019. The correspondence reveals an intention of the applicant to continue to study in Australia.

25. The Tribunal accepts the applicant’s evidence as to the circumstances of his enrolment in the Bachelor of Nursing ceasing and his attempts to enrol the following 2 years in the Bachelor of Nursing.

26. On the findings above, the Tribunal finds that the breach of condition 8202(2) was not his fault and occurred due to matters beyond his control.

27. The applicant has given evidence that if possible he intends to remain in Australia to fulfil his academic goal to undertake a Bachelor of Nursing, if he can enter the course.

28. Having had regard to the applicant’s evidence, the Tribunal accepts that the applicant has travelled to Australia intending to study and he intends to study in Australia in the future, and given his conduct in completing a Diploma of Nursing, the Tribunal gives this substantial weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

29. The applicant gave evidence that he was not enrolled in a course of study from 6 September 2017 up until his visa was cancelled on 6 July 2018 being a period of 10 months which was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment.

30. The applicant in evidence gave a number of reasons why he was not enrolled, which was supported by documentation and those reasons are set out above. The Tribunal finds that the circumstances which resulted in him not being enrolled, coupled with him suffering from stress and his attempts to gain enrolment explain why he was not enrolled in a course of study.

31. Other than the breach of condition 8202(2) the Decision Record of the delegate does not reveal any other breach of his visa conditions.

32. Notwithstanding the duration of the breach, having regard to the reasons for not being enrolled, the Tribunal gives this no weight towards the visa being cancelled.

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

33. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled. The applicant gave evidence that the visa cancellation would cause him a substantial degree of hardship in that he would be unable to complete his Bachelor of Nursing in Australia notwithstanding he had undertaken 2 years of study and he would suffer both financial hardship and not complete the degree in Kenya.

34. The applicant claims that if he was required to return home without completing the Bachelor of Nursing, he would have very limited employment opportunities. He had previously worked as a French translator in Kenya, and there is insufficient work available to support himself. He was very concerned about how he could support himself if he was required to return to Kenya.

35. As to his family, the applicant is currently residing with his sister and helping her look after her children. The visa cancellation and his return to Kenya may impose some hardship on them.

36. The Tribunal considers that the above matters give some weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

37. The applicant gave evidence as to the circumstances that led to the cancellation of the visa and the Tribunal has accepted the applicant’s evidence and accepts that the grounds contributed to the cancellation.

38. The central purpose of the student visa is to study and for the 10-month period, the applicant was not enrolled. The Tribunal accepts that during the period of the visa cancellation he was unable to undertake formal study due to the restrictions of his visa but he gave evidence that he spent time looking after his sister’s children, supporting them and seeking to ascertain what nursing courses of study were available to him in the future. The Tribunal accepts the applicant’s evidence that he wishes to study, especially considering his previous conduct.

39. The Tribunal has considered the applicant’s explanations for why he was not enrolled for this substantial period and therefore in breach of condition 8202(2). The Tribunal accepts the circumstances provide a reasonable explanation for not being enrolled for such a period of time. The Tribunal gives this matter significant weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the Department

40. The applicant responded in writing to the Department’s notice of intention to consider the cancellation of the visa. The Decision Record states that there is no evidence that the applicant has been uncooperative with the Department or the Department’s staff. The Tribunal gives this some weight in the applicant’s favour towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

41. This matter is not relevant in this application as the Tribunal is not aware of any other person in Australia whose visa would be cancelled under s.140. The Tribunal gives this factor no weight towards 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

42. The applicant gave evidence that if the visa remained cancelled he would return to Kenya and to his family. Therefore there is no indication that he would become unlawful or be subject to detention and the Tribunal gives this factor no weight towards the visa 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

43. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Kenya and he did not give any reasons as to why he could not return to Kenya and the Tribunal gives this factor no weight towards the visa being cancelled.

    If it’s a permanent visa, whether the visa holder has strong family, business or other ties in Australia

44. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa being cancelled.

    Any other relevant matters

45. The Tribunal is not aware of any other relevant factors in relation to the decision whether the visa ought be cancelled.

    Conclusion

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

    DECISION

47. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Michael Biviano
    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.