Sambu (Migration)

[2022] AATA 1994

Sambu (Migration) [2022] AATA 1994 (13 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sammy Kimutai Sambu

REPRESENTATIVE:  Mr Raymond Charles Turner

CASE NUMBER:  2106682

HOME AFFAIRS REFERENCE(S):          BCC2017/1345550

MEMBER:Wendy Banfield

DATE:13 May 2022

PLACE OF DECISION:  Canberra

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

Statement made on 13 May 2022 at 5:53pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Federal Circuit Court remittal – enrolment in a registered Higher Education course – applicant changed enrolment – family financial hardship – enrolment release not provided – lengthy gap in studies – wife’s disability support work – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 28, 48, 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 June 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not comply with condition 8202 of the Student visa because he was not enrolled in a registered course. 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 matter is before the Tribunal because of a Federal Circuit Court order dated 12 May 2021 requiring the Tribunal to determine the application made for review of the decision of the Minister.

4. The applicant appeared before the Tribunal on 8 April 2022 to give evidence and present arguments. The applicant provided written submissions to the Tribunal in support of the application for review as follows:

   ·     Written submission of the applicant dated 12 April 2022

   ·     Letter of support from Betty Ngetich dated 12 April 2022

   ·     Letter of support (for Betty Ngetich’s carer position) from Zainab El-Rheihy, 3 Bridges Community dated 13 April 2022

   ·     Letter of support from Gordana Talevska dated 21 April 2022

5. The applicant provided the following submissions prior to a previous hearing before the Tribunal (differently constituted) on 2 October 2020 which have been considered in this decision:

   ·     Department of Home Affairs (the Department) decision record dated 14 June 2017

   ·     Marriage certificate of the applicant and Betty Ngetich

   ·     Email submission dated 5 August 2019 from the applicant’s then migration agent Kristy Darshan Dhari with attachments

   ·     Letter of offer to the applicant from Group Colleges Australia (GCA) dated 25 May 2017

   ·     Department letter acknowledging receipt of application for a Student (Temporary) (Class TU) Student (Subsequent Entrant) (Subclass 500) visa dated 25 May 2017

   ·     Email dated 5 May 2017 to [email protected] attaching a PDF document.

   ·     Statutory declaration of the applicant dated 6 May 2017 stating his wish to study at GCA.

   ·     Email from Sunil Patel to the applicant attaching an offer letter and requesting “payment for revising the COE”.

   ·     Email from UniSA to the applicant (in answer to his email) dated 28 November 2016 regarding applying for a release letter.

   ·     Applicant’s email to GCE dated 20 July 2017 requesting a refund of fees due to another option (with GCE responses dated 20 and 27 July 2017 asking for applicant’s details).

   ·     Failure to deliver notice dated 4 December 2016 for an email to qualify and compliance at UniSA.

   ·     Email and form dated 1 December 2016 completed by the applicant seeking release letter from Uni SA.

   ·     Email from the applicant to UniSA dated 4 December 2016 attaching request for release and associated documents.

   ·     Email from UniSA International to the applicant dated 6 December 2016 denying the applicant’s request for a release letter to transfer to Queen Anne Business College.

   ·     Letter from Asia Pacific International College (APIC) dated 6 April 2017 for a Diploma of Business commencing on 24 April 2017.

   ·     Conditional offer letter from APIC dated 6 April 2017 to the applicant for a Bachelor of Business.

6. The Tribunal also considered the evidence provided to the Department following the Notice of Intention to Consider Cancellation:

   ·     Letter from Migration Agent Kristy Formosa dated 26 May 2017 providing information about the applicant’s circumstances.

   ·     Form 956 Advice by a Migration Agent.

   ·     Offer letter to the applicant from Queen Anne Business College dated 31 October 2016.

   ·     Marriage Certificate.

   ·     Emails from GCE to the applicant dated 9 May 2017.

   ·     Commonwealth Bank Statement dated 25 July 2019.

   ·     Email exchange between the applicant and Queen Anne College in November 2016.

7. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   The hearing

8. The applicant stated he arrived in Australia on 18 October 2015 to study Social Work at the University of South Australia (UniSA). He said he was meant to start one course and proceed to a Bachelor of Social Work. The applicant claimed he studied for the first semester then in the second semester in 2016 he had difficulty paying the fees and was given some time, but it became harder because his father back home was sick. He said he applied to attend Queen Anne College and requested a release letter from UniSA. The Tribunal asked the applicant why he applied to study elsewhere, and he stated it was because of having trouble with fees due to his father having prostate cancer, and his mother also being ill. For that reason, he wanted to attend a different college but was not given a release from UniSA. The applicant said in 2017 he applied to study at APIC and again requested a release letter from UniSA, but it was not provided. He said, “after fighting for 2017” he tried to apply elsewhere in 2018. Regarding the reason for not being provided a release letter, the applicant said he had breached a condition, and was not meant to move to another school. He said at the time he was young, and new to the country and did not ask for the right information. The applicant said in 2018 he obtained an agent and applied to study at GCA and paid fees but was not give a COE. He said after a long time trying, he had not been able to enrol after three attempts. The applicant said he was not given a COE because the education providers asked for a release letter. He advised he was not given a refund.

9. According to the applicant he has not been able to study since because anywhere he tried, he had been asked for a release letter, then his visa was cancelled. The applicant submitted that despite writing many letters to UniSA, they never provided a release letter. The Tribunal asked the applicant how he intends to enrol in future should his visa not be cancelled. He said he is hoping to get a fresh start and now he is familiar with the environment, he wants to go and explain and get a release letter. The applicant advised he still wishes to study social work in Australia because he and his wife have been affected mentally and he wants to help others. He said if he goes back to his home country, he will be able to help people there. The applicant said he married his wife in Australia in 2017, and her mother passed away from cancer, so it has been very difficult for them. The applicant’s wife is also from Kenya and is a student in Australia.

10. The Tribunal put to the applicant that according to the Department’s decision, he had accepted there were grounds to cancel his visa. The applicant answered “yes”. The Tribunal asked the applicant to confirm he does agree that there were grounds to cancel his visa and he again replied “yes”. The Tribunal explained it would then need to consider whether to exercise its discretion to cancel his student visa, taking his circumstances into consideration.

11. Regarding any compelling reasons for remaining in Australia, the applicant said he would like another chance to complete his studies; he has been a great support to his wife who lost her mother in 2018 and he wants to study so he and his wife will have a future. The applicant submitted Australia has been “the best country” for him. He said before he was young and did not know anything but now, if he is given a chance, he will try his best. The Tribunal put to the applicant that it is many years since he arrived in Australia and asked if it was correct that he has not been able to complete any studies. He confirmed that was the case. He also stated he had not been able to enrol anywhere while holding a Bridging visa, even though he had an application for review before the Tribunal. According to the applicant, he did not have study rights on his Bridging visa.

12. The applicant submitted he has complied with all other visa conditions. The Tribunal then invited the applicant to make submissions regarding any hardship that would result from his visa being cancelled. The applicant said when his visa was cancelled and after all the trials from trying to get enrolled, he almost lost himself and became depressed, but his wife has supported and encouraged him. The applicant referred to his father having cancer and his mother being ill which he said has been very hard. The Tribunal asked the applicant about any hardship he will face if his visa remains cancelled. He said back home his family were farmers, but they have sold everything to try and help him study and because of his parents’ illness. The applicant declared he cannot go home without achieving anything because his siblings feel like they have sacrificed and been left with hardship because of him. According to the applicant it will also be “a bit dangerous” for him. He was asked if he considered studying in his home country and the applicant responded that he did, however, his siblings told him he has not obtained any knowledge that would allow him to come back and work, therefore he feels “unsafe”. The applicant said his siblings and cousins think Australia has money, but he has not been able work.

13. Regarding his financial support in Australia, the applicant said he has not been able to work since he arrived, then said only his first visa had work rights, not his second. He said his wife has been supporting him. It was submitted the applicant’s wife is a carer for two girls with cerebral palsy. The applicant wanted to add to his claims regarding the circumstances that led to the cancellation of his visa. He said he had moved from Adelaide to Sydney because there was no work there, and he needed to support himself as well as study. In addition, the applicant said in Africa he had not used laptops and other technology, so he went to agents for help, however, he has since found that some of the information was not right. He said he was by himself trying to do everything in a new country. Now he knows more and claimed it will be much better than before. The applicant said his wife has her own Student visa and there is no one else holding a visa that would be cancelled if his visa is cancelled. The applicant also confirmed he had applied to be a dependent applicant on his wife’s Student visa. According to the applicant, he had hoped to study again after his wife.

14. The representative indicated to the Tribunal that he had only become involved when the applicant’s matter went to the Federal Circuit Court. He said the applicant could not have been granted a dependent Student visa after his visa was cancelled because of s.48 of the Act. It was stated that the applicant had made the dependent visa application after his visa was cancelled.

15. The Tribunal invited the applicant to make a submission about the legal consequences of cancellation. The representative asked for time after the hearing to provide submissions about the applicant’s wife’s role as a carer of two children and whether that may be in jeopardy if the applicant’s visa is cancelled, and he is required to return to Kenya. It was submitted she may feel compelled to go back to Kenya with the applicant, which would put the care of the young children in jeopardy. The Tribunal agreed to a request for the applicant to provide further evidence within two weeks after the hearing.

16. The Tribunal invited the applicant to make any submissions about whether Australia would breach any international obligations in his case if his visa is cancelled. The representative indicated a response to that issue would be provided after the hearing. The applicant did not have any other submissions to make. The applicant was asked if his wife would be appearing as a witness. The representative stated she was working, and they would obtain a written statement from her and arrangements could be made for the Tribunal to speak to her if it wished.

    Post-hearing submission of the applicant dated 12 April 2022

17. The applicant’s submissions in summary are as follows: He came to Australia to pursue studies in social work; his father and mother suffered medical conditions at home in Kenya; his father, as the sole provider of the family sold all their property to support the applicant; his brothers could not go to good schools because the applicant was given support to study; his brothers are bitter and have told him not to come home without completing his studies; he feels like a disgrace to the family; his younger brother is especially bitter; if the applicant has a second chance he will finish his studies, secure a job, prove his brother’s wrong and support them and his wife.

    Post hearing submission of Betty Ngetich dated 12 April 2022

18. The applicant’s wife stated she and the applicant have been married for five years; because of their strong bond, if he has to leave Australia she will have to go with him; she lost her mother in 2018 and wishes to fulfil her goals in Australia; the applicant supports her and pushes her to finish her course despite his own issues; she has no family in Australia and does not make friends easily; she has made connections through her work; a person she has cared for over five years will be frustrated if she leaves; if the applicant is given a second chance they “will chase the Australian dream together”.

    Letter of support for Betty Ngetich from Zainab El-Rmeihy, 3 Bridges Community dated 13 April 2022

19. Mr El-Rmeihy advises that Betty Ngetich is a support person for two disabled young women aged 26 and their mother. Ms Ngetich works with therapists and assists with the women’s complex needs. Her work is appreciated by their mother who struggled in the past to have consistent support. There is a high turnover of staff in the disability sector and COVID has made it difficult to retain staff. Mr El-Rmeihy requests that Ms Ngetich has the opportunity to continue her support work.

    Letter of support for Betty Ngetich from Gordana Televska dated 21 April 2022

20. Ms Talevska confirms Ms Ngetich has been a carer for her daughters with complex needs for the last five years. She works with their therapists and provides stability and consistency. Ms Talevska has been able to carry out her own daily activities due to Ms Ngetich’s care of her daughters. Ms Talevska requests the visa applicant be able to remain in Australia so that Ms Ngetich can continue to care for her daughters, one of whom is very attached to her.

21. 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

22. 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?

23. 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)

    ·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(3)(a), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

25. On 18 May 2017 the Department wrote to the applicant notifying him of an intention to consider cancelling his Student visa. The applicant was advised that based on evidence in the Provider Registration and International Student Management System (PRISMS), it appeared he had not been enrolled in a registered course of study since 26 July 2016. The applicant was invited to comment on the grounds for cancellation. In a response dated 26 May 2017 the applicant’s representative explained the situation that led to the breach of the applicant’s visa condition but accepted he had not been enrolled. At the Tribunal hearing, the applicant agreed there were grounds to cancel his Student visa. 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

26. 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 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

27. The applicant arrived in Australia to study and was enrolled at UniSA. The applicant advised he had studied for one semester but was unable to pay the required fees to the education provider and was not granted an extension of time to do so. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.

28. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant stated he would like another chance to complete his studies so that he and his wife will have a future. He claimed his wife, who is also a student in Australia, lost her mother in 2018 and he has been able to provide her with support. The applicant also stated he still wants to study social work because of his own experiences and to be able to help other people. The applicant gave evidence at the hearing, and in writing, that his family sold everything to allow him to study and he cannot return to Kenya without completing what he came to do. The applicant did not explain why he must study in Australia for him and his wife to have a future. In her written letter of support the applicant’s wife advised she and the applicant want to “chase the Australian dream together” but it is not clear what is meant by the statement. The Tribunal accepts the applicant has provided his wife with emotional support, as would be expected after the loss of the mother in 2018. However, it appears the bereavement occurred four years ago, and there is no indication the applicant’s wife would be unable to continue studying or working in the absence of the applicant. Regarding the applicant’s claim that he still wishes to study social work so that he can help other people, the Tribunal accepts that may be his aim but does not consider it demonstrates the applicant has a compelling need to remain in Australia.

1. The Tribunal considered the applicant’s submissions that if he is given a second chance to study in Australia, he will finish his studies, secure a job, prove his brother’s wrong and support them and his wife in Kenya. The applicant has not provided any detail to the Tribunal about the type of employment he expects to secure in Kenya following study in Australia that will allow him to support his family and his spouse. There is no evidence before the Tribunal to demonstrate that the applicant will be required to support his brothers in his home country, and according to the applicant’s evidence, in Australia his wife is currently supporting him through her work as a disability carer. The Tribunal also took account of the applicant’s claims that his brothers are bitter about his lack of achievement as a student but as an adult who has lived independently in Australia since 18 October 2015, the Tribunal does not accept based on the applicant’s bare assertions that he will be answerable or indebted to his brothers on his return to Kenya.

2. For these reasons the Tribunal is not persuaded the applicant has demonstrated a powerful or convincing reason for needing to remain in Australia. While it is understandable the applicant does not wish to return to Kenya without gaining any qualifications, he indicated in his evidence at the hearing that he had considered studying in his home country but did not explain why that would not be an option. Instead, the applicant referred to his siblings who he claimed were bitter because he has not obtained any knowledge that would allow him to work on his return. As stated, the Tribunal is not satisfied the expectations of the applicant’s siblings are a compelling reason for the applicant needing to remain in Australia.

3. The applicant arrived in Australia on 18 October 2015 and only studied for one semester before experiencing financial issues, yet he has remained in Australia for more than six and a half years as of the date of this decision. The Tribunal understands the applicant was not able to enrol while holding a Bridging visa and that his case was remitted from the courts for reconsideration by the Tribunal. However, when the applicant found he was unable to meet the cost of his studies in Australia, he could have returned to Kenya before his family had committed their financial resources to supporting him as he claims. The Tribunal finds the applicant does not have a compelling need to remain in Australia.

   ·     the extent of compliance with visa conditions

4. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions.

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

5. The applicant made submissions regarding the degree of hardship that would be caused if his visa is cancelled. A former representative stated in an email dated 5 August 2019:

   He felt defeated not being able to enrol in studies, and not wanting to return to Kenya without completing what he came here for. He could not bear to leave his young wife in Australia alone because of the emotional support and reliance they both had and continue to have upon each other.

6. The Tribunal accepts the applicant may not wish to return to Kenya without completing any courses of study in Australia. Regarding his desire not to leave his wife alone in Australia, it is understandable the applicant and his spouse may not wish to be separated. However, he and his wife were holding individual Student visas for the purpose of completing their own study goals. There is no requirement for the applicant’s wife to cease studying and leave Australia if the applicant’s visa is cancelled, it will be a matter for the parties themselves to decide. The Tribunal considered that Student visas are temporary visas and visa holders should genuinely intend to remain in Australia temporarily. Therefore, the applicant’s wife should also have the intention to return to her home country after completing her studies.

7. During the hearing the applicant advised his father suffered from cancer which he still has, his mother was also ill, and this made the situation hard for him. The applicant claimed his family in Kenya were farmers but have sold everything for him to be able to study and he cannot go home without achieving anything. The Tribunal considered that the applicant did not provide any independent evidence such as sale receipts, bank records or statements from family members to support his claim that his family have sold everything to support him, and the Tribunal is unable to place weight on this claim. It was also submitted the applicant’s siblings had to sacrifice and deal with hardship because of him and he does not want to go back to his home country without obtaining qualifications that would allow him to work. The Tribunal accepts the applicant’s family members may be disappointed in him if he returns to Kenya without completing his studies but as stated in this decision, the applicant is an independent adult and there is no evidence to demonstrate he is required to support his siblings. The Tribunal notes the applicant experienced financial difficulty early in his temporary residency (after one semester according to his evidence) and it was open to him to return to his home country until he was in a more stable position. The applicant made the decision to remain in Australia.

8. The Tribunal considered Ms Ngetich’s written statement that because of their strong bond, if the applicant has to leave Australia, she will have to go with him and that she wishes to fulfil her goals in Australia. The Tribunal accepts that if the applicant’s visa is cancelled, he will not be able to continue studying in Australia and may be separated from his wife for a period if she chooses not to depart or that she will be discontinuing her own aims if she does accompany him. It is also acknowledged the applicant would be returning to Kenya without obtaining any educational qualifications in Australia. For these reasons the Tribunal accepts the applicant will suffer some degree of hardship, including personal and financial if his visa is cancelled. The Tribunal gives some weight in the applicant’s favour based on these circumstances.

   ·     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

9. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but was not enrolled for a period of approximately 10 months. The applicant gave reasons for why he says this occurred. In his written response to the Department the applicant advised he had financial difficulties due to his parents being ill which led to his enrolment being cancelled. When he attempted to enrol elsewhere, he was not granted a letter of release from UniSA where he had been enrolled. In an email dated 6 December 2016 denying the applicant’s request for a letter of release, UniSA gave the following reasons:

   ·the proposed transfer is to a different level (e.g. Bachelor/Master to Diploma).

   ·you have changed your mind about your program of study.

   ·that as a part of your visa application, you would have had to declare or provide evidence that you had sufficient funds to pay for travel, tuition and living expenses for the duration of your stay in Australia.

   ·there are no particular compassionate and compelling circumstances.

10. At the time the applicant applied for release from UniSA the applicant wanted to enrol in a Diploma course at Queen Anne College. UniSA provided the applicant with clear reasons why his request for a release letter was denied. He was also advised he had the right to appeal the decision but there is no evidence he did so.

11. The applicant’s representative at the time stated in an email dated 5 August 2019:

    Please take into consideration the naivety of my client who was then an 18-year-old International Student who after only one semester in Australia found himself in an unknown situation of financial strain, family sickness and problems back in Kenya and being turned away at his attempts to reason with the educational institute in Australia. And whilst we agree he should have been familiar with all the terms and conditions of his enrolment to study in Australia, including the fee structure and instalment timings, where to seek assistance and help as a student, unfortunately, at the time he didn't have a complete understanding and did the best he could.

12. The Tribunal does not accept the claim that the applicant was “turned away at his attempts to reason with the educational institution…” After being advised by UniSA why his request for a release was denied there were options available to him. These included obtaining enrolment elsewhere at the appropriate study level, applying for a new Student visa to study at a lower level or departing from Australia. The Tribunal understands the applicant did attempt to enrol with other providers but was not issued a new COE. Ultimately the applicant remained onshore without meeting the requirement to maintain enrolment for an extended period.

13. At the Tribunal hearing the applicant said he had moved from Adelaide to Sydney because there was no work there and he needed to support himself. He also stated he had not used information technology in Kenya and sought assistance from agents but found that some of the information was not right. The applicant claimed he was by himself trying to do everything in a new country. The Tribunal considered the applicant claims and accepts he may have experienced some difficulties if his parents were unwell in Kenya but as outlined, there were options available to the applicant which he did not fully pursue. The conditions of the applicant’s student visa required him to maintain enrolment and it was his responsibility as the visa holder to do so. Therefore, the Tribunal finds the circumstances in which the grounds for cancellation occurred weigh against the applicant in considering whether to exercise the discretion to cancel his visa.

    ·     past and present behaviour of the visa holder towards the department

14. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department.

    ·     whether there would be consequential cancellations under s.140

15. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act. According to the applicant’s evidence at the time of the hearing, his spouse had her own Student visa.

    ·     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

16. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. However, if his visa is cancelled the applicant would be able to settle his affairs in Australia and depart without being detained as an unlawful non-citizen. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. At the Tribunal hearing the applicant was invited to make submissions about the legal consequences of cancellation and the representative requested time after the hearing to do so. The Tribunal agreed to the request, but no submissions were received that directly addressed whether the applicant may become unlawful or liable for detention or removal, the consequences for him of being subject to s.28 of the Act or compliance with PIC 4013 in future. Therefore, the Tribunal places neutral weight on the consequences of the applicant’s 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

17. The Tribunal considered whether the visa cancellation would lead to the applicant’s removal in breach of Australia’s non-refoulement obligations, that is, removing a person to a country where the person faces, persecution, death, torture, cruel, inhuman or degrading treatment or punishment. Although the applicant referred to feeling “unsafe” if he returns to Kenya without completing his studies, the context for his statement was family discord amongst him and his brothers rather than concerns about human rights violations in his home country. There is no evidence before the Tribunal that the applicant has children whose best interests would need to be considered.

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

18. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

19. It was submitted during the Tribunal hearing that the applicant’s spouse, Ms Ngetich is a carer for two disabled people. They were referred to during the hearing as children but according to the evidence provided in post hearing submissions, the recipients of the care are young women who are 26 years old. Therefore, they are not children whose best interests need to be considered in this case. It was submitted Ms Ngetich may feel compelled to go back to Kenya with the applicant if he is required to depart which would put the care of her clients in jeopardy. Ms Ngetich’s employer and the mother of the disabled clients provided letters in support of Ms Ngetich as a carer and of the applicant’s visa not being cancelled so that the disabled clients have consistent care. The Tribunal accepts Ms Ngetich’s employer and her clients’ mother want her to continue as a carer and that she also wants to continue the role. It is also accepted the clients themselves have benefitted and are attached to her. In assessing the submission concerning Ms Ngetich’s position as a disability support worker, the Tribunal had regard to the fact that as with any service provision, a disabled client’s carer may change for a variety of reasons such as illness, relocation or career change. If the applicant’s visa is not cancelled, it would not guarantee Ms Ngetich would necessarily continue as a carer for the same clients in the long term. In addition, the cancellation of the applicant’s Student visa would not require Ms Ngetich to give up her employment as a carer and depart Australia with him, that would be a matter for them to decide. As the applicant indicated Ms Ngetich is also a Student visa holder, the Tribunal considered that the purpose of a Student visa in Australia is to enable people who are not Australian citizens or Australian permanent residents to undertake study. Although students with work rights are permitted to undertake employment, it is not the purpose of the visa. For these reasons, the Tribunal does not place weight on Ms Ngetich’s employment as a reason not to cancel the applicant’s Student visa.

    Conclusion

20. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour such as a level of hardship if the visa is cancelled. However, the Tribunal finds that the length of time the applicant remained in Australia without being enrolled was significant, and he did not take steps to rectify his failure to comply with visa conditions, despite options being available to him. The Tribunal was not persuaded the applicant would have to support his brother and his family on his return to Kenya, or that his family have sold everything they own to provide him with the financial means to study. The Tribunal also considered that the applicant’s wife may feel compelled to leave Australia with her spouse if his visa is cancelled because of their close bond, but she would not be required to do so, and it is a matter the parties themselves would have to determine based on their particular circumstances. On balance, the Tribunal finds that most considerations weigh against the applicant in assessing whether his visa should be cancelled. The Tribunal is not satisfied the issues that were or will be encountered by the applicant outweigh the grounds for cancelling the visa.

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

    DECISION

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

    Wendy Banfield
    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.