SAMBU (Migration)

[2020] AATA 4373

SAMBU (Migration) [2020] AATA 4373 (19 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sammy Kimutai SAMBU

CASE NUMBER:  1713416

HOME AFFAIRS REFERENCE(S):          BCC2017/1345550

MEMBER:Peter Booth

DATE:19 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 19 October 2020 at 12:34pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – family, personal and financial difficulties – attempts to re-enrol – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

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 (the Act).

2. The delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore did not satisfy condition 8202(2)(a).  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 by telephone on 2 October 2020 to give evidence and present arguments.  

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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. 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?

7. 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).

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

9. The delegate’s decision dated 17 June 2017 concluded that the applicant had not been enrolled since 26 July 2016. In the hearing the applicant conceded that this was correct. 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

10. 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’.

11. The Tribunal turns to consideration of any relevant factors, including matters raised by the applicant and the Departmental guidelines which cover the following matters.

    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

12. The applicant arrived in Australia on 28 October 2015 as  the holder of a Subclass 500 student visa. He intended to study a Bachelor of Social Work at the University of Southern Australia. The precursor course was a Diploma of Arts at the same institution. The applicant did not give any evidence as to whether he has a compelling need to travel to or remain in Australia.

    The extent of compliance with visa conditions

13. The applicant confirmed that he was not enrolled in the Diploma of Arts course from 26 July 2016. It appears likely that he was not enrolled in the Bachelor of Social Work from that time also.

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

14. The applicant gave no evidence regarding any degree of financial, psychological, emotional or any other hardship which may be caused by the cancellation of the visa. However, the Tribunal accepts that cancellation of the applicant’s visa will cause some degree of financial hardship in the form of lost tuition fees, or emotional hardship, in the form of disappointment or embarrassment in not completing the course. The Tribunal gives this factor little weight.

    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

15. The applicant said he arrived in Australia on 28 October 2015 as the holder of a subclass 500 student visa. He was enrolled in a Diploma of Arts at the University of Australia, to be followed by a Bachelor of Social Work. He commenced the diploma course in January or February and continued until July 2016. He did not finish the course. When asked whether he was excluded from the course or abandoned it he said “during July I was trying to get to pay school fees, my parents had trouble, my father was sick, I asked for an extension to pay school fees or instalment, they did not allow me to enrolled for the next semester.” He did not elaborate. When asked whether he had applied for a deferral he said “I did not, I did not know what to do.” When asked whether he has been enrolled in any course since that time he said “Not since then, all the courses needed a visa to get me in, I got one offer, on condition of release letter, I requested it, they did not give me and I could not get the COE, then in November 2016, in April 2017, I applied for APIC college, they got me an offer letter, I paid fees, they requested a release letter, I could not get it, they did not give me a COE, after that I applied on 25 May 2017, I applied to GCA, they needed a release letter from the previous college, but did not give me a COE, I did know what to do, different people got me different opinions what to do at that time, I did not get a refund of fees.” When asked whether he had been employed while in Australia he said “Yes.” When invited to give details he said “I was working on a welding machine and driving around.” When asked when he commenced this employment he said “Started around 2017, October, but I lost my job in January because of corona”. Invited to comment further he said “I applied to AAT, also applied because I got married on 2016 April, we applied for the same visa together, I did not have money to pay for the fees, the mother passed away in 2018, October, I have supported her all the time.” When asked why the applicant did not get a job to pay for his tuition fees himself when his family could not do so he said “I moved from Adelaide to Sydney, studied aged care, I got a job I tried to pay school fees, I was working, but they did not give me a chance, but did not get the release letter on 6 December 2016 they denied my release letter.” The Tribunal asked if when the university had refused to give him the release letter,  he had done thing about it. The answer was lengthy but unresponsive to the question. When asked whether he had appealed that decision again the applicant did not answer directly. When the question was repeated he said “I went back to them, it is not clear in my mind if I wrote them another letter.” When invited to add anything else to his application for review he said “I would like a chance I can help my young wife.”

16. By email dated 5 August 2019 the applicant’s representative provided the Tribunal with 17 documents. The text of the email was as follows:

    Please find attached to this email evidence that my client Sammy Kimutai Sambu did seek to enrol and also request a release letter from his original education provider. There are numerous emails of his attempts.

    The decision record from the Department, the delegate stated that one of the reasons the visa was cancelled was because “I note that Sammy Kimutai SAMBU has acknowledged that he has not been enrolled in a registered course and does not intend to do so.” However all correspondence with the department from the beginning has remained consistent, he always intended to enrol but was not allowed to.

    He stands firm that the PRISMS records are not accurate that he was never given/issued a Confirmation of Enrollment from any other institute except the University of South Australia. He was not given the CoE’s because he was unable to provide the Institutes with a release letter

    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 enrollment 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.

    My client remains adamant that he was a genuine student and if given the chance would continue to be a genuine student. If given the chance to have his student visa reinstated, I would assist him to enrol into suitable education.
    My client did apply to join his wife visa as a dependant on her student visa on 25/05/2017. 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.
    Unfortunately, the student subsequent entrant visa was refused because his own student visa was cancelled after he had applied for the dependent student visa.

    Please find attached 17 attachments, which are prints of emails and their attachments.

17. There are many documents attached to the email by reason of there being attachments to each or in the case of emails, the underlying exchange of emails is also attached. The applicant did not refer to these documents  in the course of giving his evidence. Nonetheless they have been taken into account by the Tribunal, to the extent relevant, and given appropriate weight. The Tribunal makes several observations in relation to them. It appears that the applicant was enrolled in a Bachelor of Social Work at the University of Southern Australia. He applied to be “released” from this course of study in order to transfer to a Diploma of Arts course at a different education provider, Group Colleges Australia. By letter dated 6 December 2016 the applicant was informed by the University of Southern Australia that “your application for a release letter has been denied”. There were several reasons given for this, “the proposed transfer is to a different level, 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 and, there are no particular compassionate and compelling circumstances”. In a statutory declaration made on 6 May 2017 the applicant stated: “I came to study in SAIBT diploma of art course leading to bachelors of social studies in University of Southern Australia (UN ISA). I studied one term in my diploma and in my second term they did not grant me extension to make the payment, then they cancelled my COE as well. Now I want to study diploma plus bachelors in GCA.”

18. It is clear from the applicant’s evidence that the University of Australia cancelled his enrolment because he did not pay tuition fees. The reason advanced by the applicant for the failure to pay tuition fees was that his family was unable to do so and that his father was sick. No evidence was provided to the Tribunal to corroborate this assertion. The applicant did not apply to defer his course. He said he did not know about that process. The Tribunal observes that the letter dated 6 December 2016 from the university informed the applicant that he may appeal the decision. There was no evidence that the applicant took any steps to appeal the decision. There is no evidence that the applicant took any steps to obtain employment and pay for tuition fees himself. However he has subsequently been able to obtain employment. There was no evidence of any impediment to the applicant obtaining employment in 2016 such that he could pay the tuition fees. In the Tribunal’s view it is not unreasonable for a student, in the absence of family financial support, to take steps to pay their own tuition fees. There is no evidence that the applicant took any such steps or was unable to take such steps.

19. The Tribunal does not consider that the circumstances in which the cancellation arose were beyond the control of the applicant. Accordingly, the Tribunal gives this significant weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

20. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Whether there would be consequential cancellations under s.140

21. The Tribunal was provided with no evidence on this point and gives it little weight.

    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

22. The Tribunal accepts that there may be legal consequences as a result of the cancellation. However, these consequences were intended by Parliament when enacting the relevant legislation. The Tribunal gives them little weight.

    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

23. There was no evidence in relation to this factor and the Tribunal gives it no weight.

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

24. There was no evidence in relation to this factor and the Tribunal gives it no weight.

    Any other relevant matters

25. There was no evidence of any other matters and the Tribunal gives this factor no weight.

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

    DECISION

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

    Peter Booth

    
    

    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.