Wanjiru (Migration)

[2018] AATA 4812

Wanjiru (Migration) [2018] AATA 4812 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Francis Kamau Wanjiru

CASE NUMBER:  1707756

HOME AFFAIRS REFERENCE(S):           BCC2017/445496

MEMBER:Christine Kannis

DATE:27 July  2018

PLACE OF DECISION:  Perth

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 27 July 2018 at 8:01am

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – Not enrolled in a registered course of study – Breach of condition 8202 – Financial difficulty  – The ground for cancellation arose due to circumstances beyond the applicant’s control – Decision set aside

LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 8

CASES
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The issue in this case is whether the ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 11 June 2018 to give evidence and present arguments.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. On 7 January 2016 the applicant was granted a visa in Subclass 572 Vocational Education and Training Sector with condition 8202 attached. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2)(a) requires the visa holder to be enrolled in a registered course. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

8. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant has not been enrolled in a registered course of study since 16 November 2016. He was enrolled in a Diploma of Marketing and the reason for cancellation was indicated to be non-payment of fees.

9. Having regard to the information in the PRISMS, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 16 November 2016. The Tribunal finds that he breached condition8202(2)(a) of his visa.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

11. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

12. On  20 March  2017 the Department of Immigration and Border Protection issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

13. On 24 March 2017 the applicant responded to the NOICC and provided the following information:

    ·He had been unable to attend college for four months because in June his son was admitted to hospital for three months and he had to pay the hospital bill.

    ·When he came to Australia to study his brother-in-law was financially supporting him by paying his school fees however his brother-in-law and sister had divorced and the financial support had ceased.

    ·He wanted to return to school and leave Australia as a better person and build a future for his two boys back home.

    ·He was able to meet the visa requirement because he was enrolling at TCWA College in Cannington in a Diploma in Management.

14. At the time of responding to the NOICC the applicant provided a letter from Neema Uhai Hospital dated 20 September 2016. The letter advised that the applicant’s child had been receiving ongoing medical treatment since June.

15. The applicant told the Tribunal that he completed his Certificate course in June 2016 and ceased attending school because his son had been hospitalised. He was living with his sister and her husband and although they were financially supporting him he was also trying to earn money to send to his wife in Kenya to pay the bills. The PRISMS shows the applicant was granted a deferment in August 2016 on the basis of compassionate or compelling circumstances.

16. On 18 September 2016 his sister and her husband separated. His sister went overseas for three months. He went to live with friends who provided him with accommodation and financial assistance while he looked for work. In December 2016 he found a job that paid $100 per week. He paid rent of $75 per week for shared accommodation and survived on the remaining $25 per week and with the assistance of friends.

17. The applicant said he moved back in with his sister on her return in December 2016 and he was able to make some financial contribution to the household expenses from his $100 per week salary.

18. The applicant told the Tribunal that during the period from when his enrolment was cancelled until he received the NOICC he was trying to save money to pay for his school fees. He said he contacted his school and requested a further deferment on the basis of his financial circumstances but he was advised that a deferment could only be granted if he left the country.

19. The applicant said that during the period from when his enrolment was cancelled until he received the NOICC it was always his intention to enrol in a Diploma of Management as soon as he had saved sufficient funds to pay his school fees.

20. The applicant told the Tribunal he came to Australia to study Business Marketing with a view to securing a good job or starting his own business when he returns to Kenya. His wife and two sons aged five and three reside in Kenya. His wife works to support the children and when he is able he sends some money to her. He is now working as a kitchen hand in a restaurant and he earns about $700 per fortnight. His sister qualified as a nurse in early 2017 and she is prepared to financially support him if he is permitted to complete his studies in Australia.

21. The Tribunal put to the applicant that he would have known he was in breach of a condition of his visa following cancellation of his enrolment. He said he contacted his school to seek a further deferment but was told a deferment would only be granted if he left the country. The Tribunal considered it unlikely that he would have been advised that a deferment would only be granted on this basis.

22. The Tribunal put to the applicant that student visa applicants are required to show that they have access to pre-existing funding to support themselves for the duration of their study in Australia and he would therefore have provided a financial guarantee to the Department before his visa was granted. The financial guarantee would have included the costs of his study, accommodation, travel and overseas student health cover until 30 August 2017. The applicant said his sister’s husband had provided the financial guarantee however when his marriage to the applicant’s sister ended he ceased providing financial support.

23. Regarding the potential hardship which would result from the cancellation of his visa the applicant said if he returns to Kenya without an Australian qualification it will be difficult for him to obtain good employment.  If he returns with a good education his future and his family’s future will be better.

    Conclusion

24. The Tribunal has considered the circumstances in which the ground of cancellation arose, the extent of the breach and reasons for the breach as set out in the response to the NOICC and in the applicant’s oral evidence.

25. The purpose of the student visa is to enable the visa holder to undertake study in Australia. The applicant has not been enrolled in a registered course since November 2016 and four elapsed from that date until the NOICC was issued.

26. Based on the evidence, the Tribunal finds the applicant’s breach of condition 8202 of his visa to be significant because he was not engaging in study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. The Tribunal noted however that the period from the date of cancellation of enrolment and the NOICC was relatively short in duration.

27. The applicant told the Tribunal that the cancellation of his enrolment was due to his sister’s husband ceasing to provide financial support from September 2016.  Also, his sister left Australia for three months from September 2016. The applicant attempted to obtain employment to financially support himself however he was only able to obtain a job that paid $100 per week.

28. The applicant’s current financial circumstances are that he is living with his sister and he has a part-time job. He will be able to support himself from his employment including paying for his school fees and study related expenses. His sister provides his accommodation and provides financial support if he needs it.

29. The Tribunal placed weight on the applicant’s evidence that he initially ceased study in June 2016 because his son was unwell and he was trying to contribute towards payment of his medical expenses. The applicant obtained a deferment in August 2016 but in September 2016 his sister’s husband ceased providing financial support. This latter event occurred due to the breakdown of his sister’s marriage.

30. The Tribunal decided that the ground for cancellation arose due to circumstances beyond the applicant’s control.  The breakdown of his sister’s marriage and the consequential cessation of financial support by her husband were not caused by the applicant and there was nothing to suggest that he contributed to the breakdown of the marriage.

31. The Tribunal also placed weight on the applicant’s evidence that he intends to return to Kenya and work to support his wife and two young sons.

32. The Tribunal has no evidence before it that the applicant’s past and present behaviour towards the Department has been untruthful or unco-operative.  It considers this is a consideration that is in his favour and it has taken this into account.

33. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

34. There are no persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

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

    DECISION

36. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Christine Kannis
    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.