Rogony (Migration)

Rogony (Migration) [2024] AATA 3404 (29 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Cheryl Jemutai Rogony
REPRESENTATIVE:  Mr Davinder Bhogal
CASE NUMBER:  2307659
HOME AFFAIRS REFERENCE(S):          BCC2022/4248376
MEMBER:David McCulloch
DATE:29 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (subclass 500) visa.

Statement made on 29 August 2024 at 5:09pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances giving rise to non-enrolment – mental health issues – financial hardship – purpose of travel and stay – poor study record – significant gaps in study – degree of hardship – 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

This is an application for review of a decision dated 24 May 2023 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).
The applicant is a citizen of Kenya. The visa that has been cancelled was granted on 15 October 2021 for a stay period until 10 July 2023.
The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) on 13 February 2023. The applicant responded to the notice.
The applicant appeared before the Tribunal on 23 August 2024 at 9.30 am to give evidence and present arguments. The hearing was held by video using Microsoft Teams.
The applicant was represented in relation to the review. The representative attended the hearing.
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
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?
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: condition 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: condition 8202(2)(b);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: condition 8202(2)(c)(i); and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: condition 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full time registered course. The delegate’s decision record indicates that the applicant has not been enrolled in a registered course since 10 November 2021. Government records of the applicant’s study history indicate that this was when the applicant’s Bachelor of Community Services was cancelled for non-payment of fees.
The response to the NOICC proceeds on the basis that there was this period of non‑enrolment.
In the hearing, the applicant acknowledged this period of non-enrolment.
On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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’.
These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations); provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen (and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
The applicant’s representative in response to the NOCC provided explanations, summarised below, for not being enrolled in a registered course. Also provided were the following documents as summarised by the delegate:
·Email correspondence with Acknowledge Education regarding outstanding tuition fees and re-enrolment, from Flora Wang (Blue Education and Migration), dated 14 February 2023 and 15 February 2023. [The education provider advises that the applicant owes $15,950 in outstanding fees. There needs to be an intervention meeting to discuss lack of course progress.]
·Offer of Enrolment for a Diploma of Project Management in the name of Cheryl Jemutai Rogony, from McIver College, dated 17 February 2023.
·Diploma of Project Management COE in the name of Cheryl Jemutai Rogony, from the Australian Government Department of Education, dated 20 February 2023.
Provided on the day before the hearing was a written submission from the applicant’s representative in relation to relevant discretionary factors.
The Tribunal deals with discretionary factors in the order of importance as assessed by the Tribunal, commencing with the circumstances in which the ground of cancellation is made out, and whether there are extenuating circumstances beyond the applicant’s control.
Circumstances in which ground of cancellation is made out – extenuating circumstances beyond the applicant’s control
In response to the NOICC the representative indicated that the applicant was depressed and unwell and did not have funds to carry on with her studies. She was financially cut off from her family during and post COVID-19. She was down and did not seek help. In her culture seeking help through psychological counselling is not a common occurrence and she continued to suffer in silence. She did not know who to discuss issues with. She got in touch with a representative after she received the NOICC and is trying to resume her studies.
Her school is willing to let her re-enrol if she clears her tuition debt. She will only be able to resume her studies in May (2023). The applicant has enrolled for concurrent studies at McIver College (Diploma of Project Management) to complement her Bachelor of Community Services. Evidence of these enrolments is provided.
The written submission provided before the hearing indicates non-enrolment due to financial hardship when her family ceased providing financial support during COVID-19. The applicant experienced mental health issues but did not seek support because of cultural norms. The applicant felt isolated and could not discuss her mental health issues with anyone.
The Tribunal in the hearing put to the applicant that if she was suffering from mental health issues she could have sought a deferral on medical and compassionate grounds and maintained enrolment and dealt with her medical issues. In response the applicant indicated that she did not know of this option.
The Tribunal asked the applicant if it was the case that even if there was knowledge of a deferral option, the applicant did not have resources to pay for the course, and she agreed that that was the case.
The applicant in the hearing had referred to the fact that her prior study of a Diploma of Science (Health Studies) which commenced on 26 June 2017 was cancelled on 21 May 2018 due to non-payment of fees. Records suggest that the applicant next undertook study in October 2019 when she started a Diploma of Community Services. The Tribunal put to the applicant that this was another significant gap in the study (albeit that there was strict enrolment in a registered course).
The Tribunal noted to the applicant that for someone in Australia on a student visa there is an obligation to have resources to fund study, being the core reason for being in Australia. The Tribunal indicated that it may make allowances for temporary lapses or breaches as a result of insufficient financial resources, but in the current case the applicant was not enrolled in a registered course for the lengthy period of approximately 18 months. This is combined with the applicant’s prior gap in actual study of 17 months because of a prior lack of funds.
The applicant indicated that during the prior gap in study she sought to ameliorate this by studying English courses, which the Tribunal is prepared to accept.
From the applicant’s evidence, the core reason that she was not enrolled in a registered course for approximately 18 months is her inability to pay fees. The Tribunal is not satisfied in the context of the requirement for international students to have funds to enable study in Australia that there are extenuating circumstances beyond the applicant’s control because of lack of funds that justify non-enrolment for this lengthy period. This is reinforced by the applicant’s previous gap in actual study of 17 months because of a prior inability to pay fees.
The Tribunal would make allowances for shorter gaps but not for the period of non‑enrolment in this case.
This is significantly adverse to the applicant in the exercise of the Tribunal’s discretion.
Purpose of the applicant’s travel to and stay in Australia
The written submission to the Tribunal indicates that the purpose of the applicant travelling to and being in Australia is to complete her studies. It is indicated that she completed a Tertiary Access Program in 2017 and a Diploma of Community Services in 2020. Evidence of the latter was provided.
In the hearing, the Tribunal noted to the applicant that she had been in Australia since early 2017 on student visas, thus for approximately seven years until the current visa was cancelled.
The Tribunal put to the applicant that in that time she had completed two courses only of a combined length of approximately one year and five months. This was a fairly poor study record over seven years of study.
The Tribunal had written to the applicant prior to the hearing requesting evidence of units passed in courses commenced but not completed. The applicant did not respond. In the hearing, she indicated that this was because transcripts in the Diploma of Science (Health Studies) and the Bachelor of Community Services would not be released by the education provider because fees have not been paid. The applicant indicated that she believes she passed approximately eight units in the former and eight to 10 units in the latter.
The Tribunal put to the applicant that an email from the provider of the Bachelor of Community Services provided by the applicant indicates that in addition to the applicant needing to pay the approximately $15,000 in fees, there would need to be an intervention meeting because of poor course performance. In the hearing, the applicant indicated that she was not aware of this and had been performing well in the course.
Significantly giving the applicant the benefit of the doubt, the Tribunal is prepared to accept the applicant passed this number of units on these courses.
However, that still leaves a gap in the applicant’s study of 17 months from the cancellation of the Diploma of Science (Health Studies) from 21 May 2018 and an 18‑month period of no study during the non-enrolment period in relation to the current visa.
These quite significant gaps in study when in Australia on student visas are adverse to the applicant in considering the purpose of the applicant’s travel to and stay in Australia.
Degree of hardship if visa is cancelled
The written submission to the Tribunal indicates that there are no immediate family members onshore and thus cancellation would not cause hardship for family members. However, the cancellation would cause the applicant emotional hardship because the family will be disappointed and her return to Kenya without qualification will negatively impact her career.
In the hearing, the applicant indicates that if the visa is reinstated she has the approximately $15,000 necessary to pay what is owed in relation to the Bachelor of Community Services and then to continue this course before progressing to a Masters degree. She then would like to explore pathways to stay in Australia permanently.
The applicant indicates that it would be a hardship to her if she is not able to undertake this further study and progress down the pathway to permanent residency. The Tribunal accepts that this would be a significant hardship for the applicant.
Other issues
The written submission to the Tribunal indicates the applicant’s past and present behaviour towards the Department as a positive, which the Tribunal accepts.
It is indicated that there are no associated cancellations if the applicant’s visa is cancelled.
It is indicated that the applicant could be an unlawful non-citizen if the visa remains cancelled. The Tribunal accepts this, however the applicant would have eligibility to apply for a bridging visa to make her status lawful as she makes arrangements to leave the country.
It is submitted that there would be restrictions on the applicant being granted temporary visas for a specified period which the Tribunal accepts as a hardship to the applicant if the visa remains cancelled.
It is submitted that there is no evidence that makes Australia’s international obligations relevant to this matter.
In terms of other relevant matters, it is indicated that the applicant is employed by St Jude’s Health Care Services as a disability support worker, evidence of which is provided. As indicated, the applicant is currently providing support to residents in the final stages of life. It is submitted that the applicant performs duties exceptionally well and is highly regarded. The impact of the applicant’s departure from her employment would be significant regarding the centre’s ability to provide services to residents. It will take time for a new worker to learn and understand residents’ needs.
In the hearing, the applicant indicated that she has been working in this job since 2017. The representative provided oral submissions that this is the key discretionary factor that should overcome matters adverse to the applicant.
The Tribunal accepts the value of skilled disability support workers in Australia and that the applicant has experience and capability in this area.
Summary of key discretionary factors and weighing of discretion
Given obligations on international students to have resources to fund studies, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that remediate the applicant’s failure to be enrolled in a registered course for approximately 18 months. This gap is reinforced by the applicant’s prior 17‑month lack of study because similarly she had been unable to pay course fees. The Tribunal would make allowances for shorter gaps but not for the extant gaps in this case.
The applicant’s study record in her seven years studying in Australia is not overly impressive, in only completing courses in the combined length of 15 months and in terms of the 18‑month period of non-enrolment on the current visa and the prior 17 months of no actual study.
The Tribunal is prepared to accept that the applicant now has the resources to pay for the continuation in the Bachelor of Community Services and progress to a Masters degree before exploring pathways to stay in Australia on a permanent basis. The Tribunal accepts a significant hardship for the applicant if she is not able to progress in these respects because the visa remains cancelled.
The Tribunal takes into account, in the applicant’s favour, her work in an area of community need and some challenges for her employer to find a replacement.
In weighing discretionary factors, the Tribunal is not satisfied that the matters adverse to her are outweighed by matters favourable to her.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) visa.
David McCulloch
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.

[2024] AATA 3404

29 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice