Adahosa (Migration)

[2024] AATA 3567

Adahosa (Migration) [2024] AATA 3567 (13 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gideon Onyeka Adahosa

REPRESENTATIVE:  Mr Isaiah Okorie (MARN: 1793819)

CASE NUMBER:  2313447

HOME AFFAIRS REFERENCE(S):          BCC2023/2144418

MEMBER:Penelope Hunter

DATE:13 September 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 13 September 2024 at 4:07pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered full-time course – non-payment of fees and enrolment cancelled – family circumstances and financial difficulties – new enrolment – wife’s separate visa with applicant not a dependent – impending childbirth – mandatory legal consequences – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 31 August 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) 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 was found not to have complied with a condition of his visa. 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 9 September 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. Mrs Peace Adahosa. The applicant was represented in relation to the review and his representative also attended the hearing.

4. 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

5. 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.

   Background

6. The applicant is a 38 year old male citizen of Nigeria. He was granted the visa on 22 December 2021 to undertake study in Australia in a Graduate Certificate in Disaster Risk Management and a Master of Disaster Resilience and Sustainable Development finishing on 31 December 2023. This visa was subject to conditions, including condition 8202.

7. On 25 May 2023, a delegate of the Minister wrote to the applicant and provided him with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act. The applicant was notified that information from his Provider Registration and International Student Management System (PRISMS) records indicated that both of his enrolments were cancelled on 2 August 2022 due to non-payment of fees. The applicant was informed that this may be a breach of condition 8202 of his visa and he was invited to comment on why the grounds for cancellation may not exist.

8. On 1 June 2023, a delegate of the Minister wrote to the applicant, care of the applicant’s appointed representative, and again provided him with a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act. The applicant was notified that information from his Provider Registration and International Student Management System (PRISMS) records indicated that both of his enrolments were cancelled on 2 August 2022 due to non-payment of fees. The applicant was informed that this may be a ground for cancellation of his visa and he was invited to comment on why the grounds for cancellation may not exist.

9. On 8 June 2023, the representative for the applicant provided submissions in response to the NOICC and the following documents:

   ·A statutory declaration of the applicant dated 8 June 2023.

   ·Letter of 9 May 2023 from the Department granting a student visa to the applicant’s wife.

   ·A letter of offer dated 6 June 2023 addressed to the applicant from Imperial Institute Sydney, in an Advanced Diploma of Civil Construction Design and a Graduate Diploma of Management Learning, commencing on 19 June 2023.

   ·A report from Joseph Kokotovic, registered psychologist, dated 26 May 2022.

   ·A transcript of studies from Torrens University.

   ·Letter from the Commonwealth Bank regarding the applicant’s funds balance as of 20 May 2023.

   ·An affidavit of financial support, by Abass Takubu Osigbemhe, for Mrs Peace Adahosa.

   ·Attestation of birth of Peace Adahosa.

   ·Receipts for course fees paid by Peace Adahosa at Torrens University.

   ·Transcript of applicant for studies in Nigeria.OND Auch Poly

   ·Receipts for payment of hospital fees in Nigeria.

   ·Death certificate of Zekiya Ahmed, date of death 1 March 2022.

   ·Birth certificate

   ·Marriage certificate of the applicant and Peace Adahosa.

   ·Office of the Area Command of the Nigerian Police, extracts from Crime Diary 28 June 2022.

   ·Affidavit of Joshua Adahosa dated 28 June 2022.

10. In summary the affidavit and submissions of the applicant’s representatives set out the following information:

    i.The applicant did not dispute that his enrolment in a registered course of study had ceased on 2 August 2022.

    ii.The events that led the applicant to become an enrolled were out of his control. They started with the loss of his mother-in-law on 1 March 2022 following a period of illness. The applicant had used his savings to pay for his mother-in-law’s hospital bills.

    iii.The applicant’s wife, Mrs Peace Adahosa, accompanied him to Australia while he was studying. His wife became depressed after the death of her mother, and he had to care for his wife. He started seeing a psychologist in May 2022.

    iv.On 4 June 2022 the applicant’s brother, Joseph Adahosa, who was also his sponsor was kidnapped. His brother was only released upon a ransom be paid. After this his brother was ill and financially bankrupt and unable to continue as the applicant’s financial sponsor.

    v.The applicant struggled to pay his tuition fees, and in July 2022 the applicant was locked out of his school account due to non-payment of fees. He attempted to defer his studies but was advised he was unable to defer until he paid outstanding tuition fees. He tried to communication with his education provider on more than three occasions by phone.

    vi.The applicant’s mother then became ill and he had to work to contribute to a hospital bills. She was in hospital from early July 2022 to mid-August 2022. In a few months he went from a student who was achieving distinctions in his course to one who could not afford to pay rent.

    vii.By September 2022 he was in a better place emotionally and psychologically and he talked to his relatives about his situation. He was quite uncomfortable with his situation and had tried his best to get a replacement sponsor.

    viii.By October 2022 he had saved some money. His wife was also feeling better by October 2022 and she determined to study. The applicant’s brother-in-law agreed to sponsor her and it was proposed that he transfer as a dependent on her visa. However, they did not have enough money to purchase family health insurance so they decided that she would apply solely for her visa and he would remain on his own student visa. On 9 May 2023 his wife was granted a (subclass 500) student visa.

    ix.In early 2023, the applicant’s uncle agreed to financially sponsor his stay in Australia. He contacted his education provider and was advised he would have to reapply for admission. He then decided that he would be better off getting some advanced Australian qualifications in engineering, so that when he returned to Nigeria he could go back to his previous employer with the prospects of advancement.

    x.The applicant was provided with incorrect advice from an education agent who applied on his behalf for a Temporary Activity (subclass 408) visa on his behalf on 13 May 2023, instead of a Subsequent Entrant (subclass 500) all visa, this visa application was refused. On 12 May 2023, the also applicant applied  for a Subsequent Entrant (subclass 500) visa.

    xi.The applicant then applied to the Imperial Institute Sydney for enrolment in an Advanced Diploma of Civil Construction Design and a Graduate Diploma of Management (Learning). He has a letter of offer to continue his studies.

    xii.He has always cooperated with the Department, he always tried to abide by his visa conditions. He became depressed in the previous year and he does not know what he would do if his visa was cancelled. Cancelling his visa is likely to put him in “harms way” because he will be viewed as a failure and someone who did something wrong and be deported from Australia. He believes his friends and family would have a negative view towards him if his visa was cancelled. His mental health will also suffer. He was a successful student before coming to Australia. The ridicule may be too much to bear and as a result he may come to harm.

    xiii.The cancellation of his visa would prevent him from staying with his wife and supporting her as she completes her education in Australia. It would be contrary to Australia’s obligations under the ICCPR, which refers to the protection of the family as a natural and fundamental group unit of society by the state. The applicant and his wife have spent thousands of dollars on their education in Australia so far.

11. The delegate was satisfied with the material before them the grounds for cancellation under s 116 of the Act were made out. The delegate considered the submissions of the applicant however, they were satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

12. On 1 September 2023, the Tribunal received an application for review from the applicant together with a copy of the decision record of the delegate.

13. On 3 September 2024, the Tribunal received submissions from the representative of the applicant, copies of documents previously filed with the Department and the following additional documents:

    i.A Confirmation of Enrolment (CoE) in an Advanced Diploma of Civil Construction Design at the International Institute of Sydney with course date from 16 September 2024 to 23 August 2026, created on 26 August 2024.

    ii.A CoE in a Graduate Diploma of Management (Learning) with course dates from 14 September 2026 to 12 September 2027, created on 26 August 2024.

14. On 9 September 2024, the Tribunal received further submissions from the representative of the applicant with annexures including a copy of the applicant’s certificate of national service, a personal reference for the applicant from Bube-Dan Global Resources Ltd, and a further copy of the decision record of the delegate.

15. On 10 September 2024, the Tribunal received the following documents:

    i.Letter of grant of a Subclass 482 visa to Peace Adahosa, granted 26 July 2024.

    ii.Email chain between the applicant and the applicant to University of Newcastle fees team between 20 and 26 April 2022.

    iii.12 week dating scan for Peace Adahosa.

    iv.Liverpool Hospital caesarean booking for Peace Adahosa.

    v.Letter from the Commonwealth Bank dated 23 August 2024, confirming the balance of the applicant’s account.

    Did the applicant comply with Condition 8202?

16. 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 full time registered course: 8202(2)(a)

    ·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(2)(c)(i), and

    ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

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

18. In the submissions to the Department and the Tribunal, the applicant had not disputed that he was not enrolled when issued with the Department’s NOICC.

19. The applicant confirmed at the hearing that he was aware that his visa was granted subject to conditions, including the condition that he maintain enrolment.

20. The applicant also confirmed to the Tribunal that he was not enrolled in a registered course of study between 2 August 2022 when the University of Newcastle cancelled his enrolment up until the time the delegate issued the second NOICC on 1 June 2023.

21. The Tribunal consequently find that the applicant on the evidence was not enrolled in a full time registered course between 2 August 2022 and 1 June 2023, and he did not comply with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

22. 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

23. The purpose of the applicant’s travel and stay in Australia was for him to undertake study as a primary visa applicant. He did not continue his studies after 2 August 2022 and made applications both to be granted a subclass 408 visa and a subsequent entrant subclass 500 student visa as a dependent of his wife. The latter of which was granted. The applicant has blamed advice from a representative for the 408 visa application. However, to the Tribunal it appears on this conduct that the applicant had already determined prior to the cancellation decision that he did not want to remain in  Australia for the purposes of a student visa.

24. The applicant claimed that he needed to have his student visa reinstated because it was his strong wish to obtain qualifications in Australia. He claimed that if he returned without them it would be shameful for him. In response to questions from the Tribunal about his claims that his former employer would re-engage him in the future, the applicant said that this was on the understanding that he would have gained new skills and qualifications in Australia. The applicant acknowledged that he could study in his home country but he claimed that higher level courses were often taught by visiting academic as the skills were not common in the profession in Nigeria, in Australia he claimed he would obtain first hand knowledge and the courses in his home country were not as high a quality as that offered in Australia. The applicant has presented evidence that he has a current enrolment and in addition relevant funds for his costs and expenses for the duration of his course.

25. While the Tribunal acknowledges the quality of an Australian education, the applicant is currently proposing an Advanced Diploma in Civil Constructions and Design and a Graduate Diploma of Management. The Tribunal is not satisfied that he could not obtain a course at this level or higher in his home country, and that a higher course in particular would not be of equal value for his career.

26. As to the compelling need for the applicant to remain in Australia, his wife is currently 8 months pregnant. Their first child is due on 9 October 2024. Mrs Adahosa spoke to the Tribunal about her need to have the applicant present and supporting her during this time. She also told the Tribunal that to perform well in his academic studies, and thus be able to return to them, was important to the applicant’s self-esteem. She has just been granted a subclass 482 visa, the applicant is not currently a dependent on this visa. The Tribunal accepts that there is a compelling need for the applicant to remain in Australia with his family.

27. The Tribunal gives this factor some weight against the cancellation of the visa.

    The extent of compliance with visa conditions

28. As set out above, the duration of the applicant’s non-compliance with condition 8202(2)(a) was considerable, from 2 August 2022 to 1 July 2023, approximately 11 months. The applicant was acknowledged that he was aware it was a condition of his visa that he maintain enrolment. The duration of the applicant’s non-compliance is a matter of considerable concern as the failure to maintain enrolment and continue study goes to the core purpose of the visa.

29. There is no evidence before the Tribunal that the applicant has not complied with any other conditions of his visa.

30. The Tribunal gives this factor weight in favour of cancellation.

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

31. The Tribunal accepts that there will be considerable psychological and emotional hardship to the applicant and Mrs Adahosa if the visa remained cancelled. The applicant currently holds a subclass 500 student visa as Mrs Adahosa’s dependent. Since 24 July 2024 she is no longer the holder of a student visa and the applicant no longer meets the eligibility for that visa. If the visa remained cancelled and consequently the applicant was required to return to Nigeria, he would potentially be separated from his wife and child for several years. If he was unable to return to study and obtain desired qualifications it is accepted that this could also impact financially on the applicant’s future income and his ability to provide for his family.

32. The Tribunal gives this factor weight against the cancellation of the visa.

    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

33. The applicant claims that within a few months he went from being a distinction level student to being unable to afford his rent. Around the time of cancellation of his enrolment the applicant and his wife incurred medical expenses associated with the illness and subsequent death of his mother-in-law. Mrs Adahosa became very depressed following the death of her mother and was unable to work and contribute to their financial expenses. Then his brother was kidnapped and his sponsor was no longer able to support him. Finally the applicant and other members of his family were required to contribute to the medical costs of his mother’s treatment. The applicant has provided evidence to support his claims and the Tribunal accepts that events occurred outside his control that which resulted in him being unable to afford his course fees. The applicant claims that early on he attempted to enter into a payment plan with the University of Newcastle to address his financial problems. This is supported by the email correspondence he submitted following the hearing. The Tribunal also noted the report of Joseph Kokotovic, registered psychologist, and accepts that in May 2022, the applicant was attempting to obtain a release from his education provider.

1. While it is accepted that events outside the control of the applicant lead to him being unable to afford his fees and consequently the cancellation of his enrolment, the Tribunal is not satisfied that this accounts for the duration of time that the applicant was not enrolled. It is not sufficiently clear to the Tribunal why the applicant and Mrs Adahosa determined to swap roles as the primary holder of a student visa in late 2022/2023. If their funds had recovered, their mental health had recovered and family support was again available it is difficult to understand why at this time the applicant did not re-enrol instead of starting a process for him to change to a secondary visa holder as a dependent on Mrs Adahosa’s visa. Further, if the applicant had himself obtained financial backing from a relative by early 2023, it is difficult to understand why he did not immediately take steps to address the breach of his visa condition.

2. This factor is given low weight in favour of the applicant and against cancellation.

   Past and present behaviour of the visa holder towards the Department

3. There is no evidence that the applicant had not been cooperative in his dealings with the Department. The Tribunal gives this consideration some weight in against cancellation.

   Whether there would be consequential cancellations under s 140

4. The applicant’s wife, as of 24 July 2024, holds a subclass 482 visa. She is not dependent on the applicant’s visa and her visa will not be cancelled.

5. The Tribunal attributes no weight to this factor.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

6. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

7. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12 while onshore.

8. The applicant is currently a dependent on the former student visa of his wife. She no longer holds a student visa the applicant consequently is no longer eligible to hold a student visa as the dependent of a primary applicant who satisfies the primary criteria of a student visa. The above restrictions would prevent the applicant from applying for a further student visa to remain in Australia or any other type of visa. The consequence is that he could be separated from his wife and child for some time should they chose to remain onshore.

9. The Tribunal gives this consideration some weight against the cancellation of the visa the visa.

   Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

10. The applicant claimed that he had no fears generally about returning to Nigeria but he was afraid for his future if he returned without qualifications.

11. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

12. The Tribunal has considered Australia’s obligations under the Convention of the Rights of the Child (CRC) and the ICCPR if the via remained cancelled. The applicant and Mrs Adahosa are expecting their first child in a month. It is their intention for the child to be born in Australia, the medical circumstances associated with Mrs Adahosa’s pregnancy have made a planned caesarean appropriate on 9 October 2024. Should the visa remain cancelled, and if the applicant is required to depart Australia in the normal course it would be around shortly after the birth of his child. 

13. The decision as to whether Mrs Adahosa and their child remain in Australia is a decision for the applicant and Mrs Adahosa to make as a family, not the Department. Mrs Adahosa does not have a permanent right to remain in Australia, her subclass 482 visa a temporary visa valid until 6 July 2026, however, should she determine to remain in Australia it is accepted that the better interests of their child would be served by the applicant being able to play an active and caring role in the child’s life during its infancy. The Tribunal places considerable weight on this factor in favour of the visa not being cancelled.

    Conclusion

14. In this matter the Tribunal accepts that there were some exceptional circumstances outside his control that led to his enrolment being cancelled in the first instance and his non-compliance with condition 8202. In this matter the Tribunal also places particular emphasis on the better interests of the applicant’s child and Mrs Adahosa of him remaining in Australia as a student visa holder. The Tribunal accepts on balance that the applicant does genuinely desire Australian qualifications, he has obtained a further enrolment and has presented the finances to demonstrate that he has the capacity to return to study. In summary the Tribunal finds that there are more factors in favour of having the applicant’s visa reinstated that those counterbalancing factors in favour of cancellation at the time of this decision.

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

    DECISION

16. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Penelope Hunter
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.