SANGA (Migration)

[2019] AATA 1262

SANGA (Migration) [2019] AATA 1262 (10 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Benjamin Kiptoo Sanga
Ms Shillah Cheruto Rono

CASE NUMBER:  1621893

HOME AFFAIRS REFERENCE(S):           BCC2016/3186616

MEMBER:David McCulloch

DATE:10 April 2019

PLACE OF DECISION:  Sydney

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 10 April 2019 at 10:18am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – extenuating circumstances beyond the applicant’s control – education provider collapsed – delay in enrolling in another course – financial difficulties – knowledge of ability to study on bridging visa – study history – genuine intention to continue with study – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 141, 348
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 14 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicant is a national of Kenya born on 11 November 1986. The visa that has been cancelled was granted on 20 May 2015 for a stay period until 5 May 2017. That visa was subject to condition 8202.

5. On 17 November 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 23 November 2015. The applicant provided a written response to the NOICC. On 14 December 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

6. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

7. The applicant appeared before the Tribunal on 22 November 2018 and 9 April 2019 to give evidence and present arguments. The applicant communicated in English.

8. 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

9. 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?

10. 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).

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

12. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 23 November 2015. In the Tribunal hearing the applicant acknowledged that he ceased to be enrolled on this date due to his cessation of studies.

13. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

14. 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

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

16. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). 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.

17. The applicant provided the following email dated 22 November 2016 in response to the NOICC (not corrected for spelling or grammar):

    Am appealing for consideration in reasons as to why my visa should not be cancel due to some list of reason.

    1.       The school I enrolled to study was closed indefinitely that's AUSTRALIAN INSTITUTE OF PROFFESIONAL STUDIES (A.I.P.E). 0n 30 Nov 2015. Check Sydney morning herald for the say date am referring for further reference.

    I admit, I had a very difficult time in attending classes in relation to the situation I was subjected to, as a result of this let to loss morale was worried more of my future considering that my dad, the sole sponsor as of late last year but he went for retirement as per Kenyan constitution which states that if you attain age of 65 years old you cease to work for any public office.

    2.       Consider my family also

    I was very distracted with the home situation and was unable to focus on my schoolwork. I understand now that I should have communicated with visa department but I had no idea on what to do with same situation, closure of institution of higher education struck me as surprise and how to handle this was a nightmare I was to complete my study before end of November 22, 2016 hence to start again applying for other visa will cost me a lot in terms of time and money and to catch up with what we had learn from my former college will pose so much challenge because my visa time is schedule to end and starting over again is a challenge.

    My sister is diagnosed with breast cancer same time this as a leverage for my appeal but put yourself in my shoes and consider the situation am subjected to in life.

    My wife also will suffer because she has no one to depend on, her dad passed away while she was still young she grew up with single parent and her mother depends on her too.

    Have been in Australia for 3 years with no issues with immigration or any bad record my second home am used to live. I did perform well in my certificate Accounting Diploma of Business and Advance Diploma in business my former school that is ZENITH BUSINESS ACADEMY.

    If you reinstated my visa, I will focus much better on my schoolwork, take fewer hours, and manage my time more wisely

18. The applicant provided a written statement to the Tribunal in advance of the hearing. The applicant indicated that he completed a Certificate IV in Accounting at Zenith Business Academy that commenced in October 2012. The applicant then indicated that he undertook a Diploma of Business that commenced on 15 November 2013. He then studied and obtained his certificate in an Advanced Diploma of Business. He was waiting for his results in early 2015 to use to apply for a Bachelor of Accounting later in the year (PRISMS indicates that the applicant enrolled in a Bachelor of Business). The applicant obtained his 573 Student visa on 20 May 2015 in order to achieve his Bachelor’s degree.

19. The applicant refers to his wife who he has been married to for over three years. They have been through a difficult time and were on the brink of separation. The applicant’s hope for the relationship depends on the outcome of the decision. The applicant has not worked for over 12 months. Prior to that he worked full time and his wife relied on the wage to pay rent and bills.

20. The applicant says that he lost morale because of the way his studies were conducted. The content of the education was not good enough and was too money oriented. The mode of marking exams and assignments was not good. The applicant indicates that in early 2016 he made the decision to seek advice from his agent but decided to take the matter into his own hands. He decided to go back to his college and ask for a transcript and apply to transfer to another college of his own choice. It took them a long time to make a decision to release the transcript after the end of the first semester. The applicant ended up skipping classes during the second semester. He was told to study English as this was a bridge to fill the gap. Financial hardship to the applicant escalated when he received news that his sister had been diagnosed with breast cancer. At the same time the applicant’s father was laid off from work and unable to provide support. The applicant spent his funds on his sister’s recovery and supporting his wife.

21. The applicant brought to the Tribunal hearing certificates of attainment in his Certificate IV in Accounting, Diploma of Business and Advanced Diploma of Business. The Tribunal accepts that the applicant successfully completed these courses. The applicant indicated that he studied for the first semester of 2015 in the Bachelor of Business and completed three units. However, he referred to having disillusion in the second semester of 2015 as to the quality of the institution, the course and the teaching. There was also media commentary as to the fragility of the education provider. Following the applicant ceasing his studies, the applicant provided evidence of making a request to the education provider for his transcript as he wished to transfer to another education provider.

22. The Tribunal accepts that the education provider, the Australian Institute of Professional Education collapsed at the end of 2015 leaving many students stranded. The Tribunal accepts that the applicant was disillusioned with his education provider which explains him withdrawing from the course in November 2015. The Tribunal would make some allowances in the applicant not being able to swiftly enrol and study in a registered higher education sector course.

23. However, the applicant enrolled in no such course up until December 2016, when the visa was cancelled, nor thereafter. The Tribunal notes that there is no restriction on the applicant’s ability to study on his Bridging visa. In the hearing, the applicant indicated that he did not know that he was able to study once the visa was cancelled. The Tribunal is inclined to accept this.

24. In the hearing, the applicant reiterated that the various impediments to him enrolling in 2016 when he still held his Student visa were financial difficulties in funding his studies due to work issues relating to his father, the fact that the applicant’s sister had cancer, the death of his wife’s aunt and misinformation by his migration agent.

25. The applicant indicated that his brother is now in a position to assist in the funding of his studies. He also would be able to supplement income from his ability to undertake part-time work.

26. The Tribunal has not insignificant concerns that the applicant failed to enrol in any registered course or in a higher education sector course during 2016 when the visa was still valid. The Tribunal also notes that the applicant has failed to enrol and study any course since, notwithstanding no restriction to do so on his Bridging visa. However, the Tribunal makes some allowance based on the applicant not being aware of his ability to study.

27. The Tribunal considers in favour of the applicant that he completed the three registered courses as the pathway to his Bachelor of Business. At the end of the first hearing, the Tribunal was impressed that the applicant had a genuine intention to continue with his Bachelor course notwithstanding the not insignificant delay following withdrawal in November 2015.

28. The Tribunal decided at the end of the first hearing to adjourn the proceedings for several months to allow the applicant the opportunity to seek to enrol in a registered course and a higher education sector course and to make initial payments for that course and undertake initial study in the first part of 2019. The Tribunal also asked the applicant to provide evidence of his financial ability to sustain enrolment and study of the course. At the resumed hearing the applicant would have the opportunity to demonstrate to the Tribunal his efforts in this respect to higher education study which would significantly weigh in the applicant’s favour in the exercise of the Tribunal’s discretion not to cancel the visa.

29. Following the first hearing it became clear to the Tribunal that the Student visa granted to the applicant in fact expired on 5 May 2017. Therefore, if the Tribunal was to decide not to cancel the visa it would not need to be satisfied that the applicant was enrolled in a registered higher education sector course, because the visa is no longer in force. If the applicant wishes to continue his studies and remain in Australia he will need to apply for another Student visa.

30. The Tribunal notes that at the time of the first hearing the applicant did not hold a Bridging visa and conditions on which prevented the applicant from studying. However, at the second Tribunal hearing on 9 April 2019 the applicant indicated that the Bridging visa that he subsequently obtained had a condition that he could not study. It also had a condition that he could not work. The Tribunal confirmed during the course of the hearing that this was correct.

31. Therefore, through no fault of his own the applicant was not able to enrol in a registered course following the first Tribunal hearing.

32. In these circumstances the Tribunal has determined not to exercise its discretion to cancel the visa. The Tribunal is prepared to accept that there were a variety of extenuating circumstances beyond the applicant’s control which contributed to the visa being cancelled, most particularly the quality and collapse of the education provider and thereafter other issues, including temporary financial impediments and a lack of knowledge by the applicant that he could study while not holding a Student visa. The applicant has a solid study history in Australia from 2012 until 2015. The Tribunal accepts that there will be hardship for the applicant in returning to his home country without completing his desired studies in Australia. The Tribunal also accepts that there will be hardship to the applicant if the visa remains cancelled in terms of his ability to apply for various visas onshore.

33. These issues canvassed by the Tribunal are the relevant discretionary factors in the Tribunal’s view. Balancing discretionary factors, the Tribunal determines not to exercise its discretion to cancel the visa.

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

    DECISION

35. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 573 Higher Education Sector visa. The Tribunal has no jurisdiction with respect to the other applicant.

    David McCulloch
    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.