Suge (Migration)

[2020] AATA 628

Suge (Migration) [2020] AATA 628 (3 March 2020)

Corrigendum

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Allan Kiptoo Mutal Suge

CASE NUMBER:  1911084

DIBP REFERENCE(S):  BCC2019/185367

MEMBER:Mark O'Loughlin

DATE OF DECISION:  3 March 2020

DATE CORRIGENDUM

SIGNED:18 March 2020

PLACE OF DECISION:  Adelaide

AMENDMENT:  The following corrections are made to the decision:

The words ‘The Tribunal affirms the decision to cancel the applicant’s Class TU visa’ at paragraph 36 should be replaced with ‘The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa’.

Mark O'Loughlin
Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Allan Kiptoo Mutal Suge

CASE NUMBER:  1911084

HOME AFFAIRS REFERENCE(S):          BCC2019/185367

MEMBER:Mark O'Loughlin

DATE:3 March 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 03 March 2020 at 3:02pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – victim of misrepresentation – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 of his visa and the reasons to cancel the visa did not outweigh the grounds for cancelling it. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 13 January 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing either in person or by telephone.

5. 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

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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

7. Tribunal had regard to the decision of the delegate, a copy of which was provided to the Tribunal by the reviewer applicant. The Tribunal also had regard to a logbook, a copy of which was provided to the Department by the applicant.

8. Due to a difficulty with Internet access on the applicant’s mobile phone he was unable to demonstrate to the Tribunal at the hearing that he had a new confirmation of enrolment (COE).

9. In the applicant’s evidence he said that he had commenced studying and that he had been assured that he could complete his course within about one year.

10. The applicant was given 4 weeks to provide further documents setting out his enrolment in the length of time it was taken to complete his course.

11. The applicant provided a statement to which the Tribunal had regard and the Tribunal has considered updated records retained on the PRISMS database including a current COE for a Diploma of Civil Aviation (Commercial Pilot Licence Aeroplane) at the Bruce Hartwig Flying School Pty Ltd, on the basis of which document Tribunal is satisfied that the applicant is enrolled in a registered course which he will complete in about 5 months.

    Did the applicant comply with Condition 8202?

12. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant in this matter be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

13. The applicant gave evidence that when he came to Australia to study aviation he enrolled at SAIBT but that due to changes in the course structure he moved to a different institution, Aerostar aviation. The applicant conceded that by the time of the cancellation of his visa in April 2019, Aerostar aviation was not relevantly registered.

14. The applicant therefore agreed that at the time of the cancellation of his visa he was not enrolled in relevantly registered course.  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 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’.

16. The applicant gave evidence that he was induced to enrol in a course at Aerostar aviation by a misrepresentation that they made. That misrepresentation was that they were registered. The applicant was unable to provide written evidence of that misrepresentation although it is not surprising that Aerostar may have been reluctant to commit such representation, if they made it, to writing.

17. The applicant gave evidence that he paid fees of about $20,000 to Aerostar. The Tribunal accepts his submission that he would not have paid so much money if he had realised that the course was not registered.

18. The applicant further gave evidence that he paid SAIBT about $120,000.

19. The Tribunal accepts that these payments do suggest that the applicant believed he was on course to obtain his commercial pilots licence.

20. The Tribunal accepts the applicant’s evidence that he believed that the course that he enrolled in with Aerostar was a registered course.

21. The applicant gave evidence that the sole purpose of his travel to Australia was to study aviation. Tribunal accepts that his purpose in travelling to Australia and remaining in Australia was to study aviation. The applicant gave evidence that he hopes to pursue career opportunities overseas once he has the proper pilots licence.

22. The applicant gave evidence that he stopped studying at SAIBT in late 2017 which means that at the time his visa was cancelled in April 2019 he had not been enrolled for over 1 ¼ years. Tribunal regards this as a substantial breach of his visa conditions.

23. The Tribunal has regard to the applicant’s evidence, which it accepts, that for most of that time the applicant was not aware that the Aerostar course was not registered.

24. In relation to hardship the applicant said that if he is obliged to return to Kenya the standard of teaching there is insufficient to enable him to pursue his dream of working for Emirates airlines as a pilot. He said that at this stage his parents have paid about $152,000 in total in order to enable him to obtain Australian qualifications. The applicant said, and the Tribunal accepts, that to return without an Australian pilots licence will essentially mean a waste of that money and would represent a substantial hardship to the applicant’s parents.

25. The applicant gave evidence that the father is about to retire and that the money for his study will have to be taken from his father’s retirement investments. He said that his parents expect him to repay the cost of the study he is currently doing and that that would be about $90,000. He said that if he is unable to work he is unlikely to the able to repay that money and that would represent significant economic hardship for his parents.

26. In addition the applicant said that he spent nearly 5 years pursuing Australian pilot qualifications and to fail at this stage would be a source of shame for him.

27. In relation to the circumstances in which the grant of cancellation arose, the Tribunal accepts with some hesitation the applicant’s evidence in this respect and finds that the applicant was the victim of a misrepresentation made by Aerostar aviation about the registration of the course he was doing and to that extent the grounds for cancellation arose from circumstances that were beyond the visa holder’s control.

28. There is no evidence of past or present behaviour of the visa holder towards the department that suggests his visa should be cancelled.

29. There is no evidence that there would be consequential visa cancellations under section 140.

30. If the visa holder’s visa is cancelled he will become an unlawful noncitizen.

31. He will need to apply for another visa to remain in Australia. If he is not granted a visa and does not leave voluntarily he will become liable to detention under section 189 and removal under section 198.

32. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013 which will mean he will be ineligible for the grant of another visa to Australia 3 years after the cancellation of the Student visa.

33. There is no information before the Tribunal suggests that the cancellation would be in or result in breach of Australia’s international obligations.

34. The Tribunal has weighed the considerations set out above together and finds that, although the applicant’s breach of visa condition was substantial the reasons not to cancel his visa outweigh the grounds for cancelling it.

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

    DECISION

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

    Mark O'Loughlin
    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.