Ajaegbu (Migration)

[2019] AATA 6255

Ajaegbu (Migration) [2019] AATA 6255 (31 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kelechi Nwadinobi Ajaegbu

CASE NUMBER:  1813078

HOME AFFAIRS REFERENCE(S):          BCC2018/837402

MEMBER:Michael Biviano

DATE:31 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 31 October 2019 at 12:49pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –not enrolled in a registered course of study – breached condition 8202 – encountered financial difficulties – didn’t take any action to ensure he did not breach condition 8202 –no documentary evidence–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 33, 48, 116, 140, 189, 198
Migration Regulations 1994 (Cth), Schedule 8
Education Services for Overseas Students Act 2000 (Cth)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 April 2018 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 15 August 2017 and he was not compliant with condition 8202 of his visa.  The Delegate went on to consider the factors in favour of cancellation outweighed those against cancellation.  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 4 October 2019 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 (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?

7. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·must be enrolled in a full-time registered course: 8202(2)(a);

   ·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: 8202(2)(b);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and

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

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 decision record of the Delegate of the Department of Home Affairs dated 30 April 2018, which was provided to the Tribunal by the applicant confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 24 February 2017 and the reasons for the cancellation of the visa (Decision Record).

10. The applicant arrived in Australia on 15 February 2015 pursuant to a student visa class TU to study a Master of Civil Engineering at the University of New South Wales.

11. The applicant gave evidence that he completed the master’s course in September 2016.

12. He gave evidence that he struggled to meet the payment of the tuition fees for the master’s course and reached agreement with the university to pay the tuition fees by way of instalments, which he stated that he is continuing to pay to the university.    

13. In March 2017 he enrolled at Southern Cross School of Business (SCSB) to study an Advanced Diploma of Leadership and Management, having obtained the Class TU 500 student visa in February 2017.

14. The applicant gave evidence he encountered financial difficulties by reason that:-

    a.His father had supported him financially to study the master’s course but he retired, and the applicant was not supported in his studies at SCSB; Further,

    b.His father was awaiting the payment of his pension which did not come through immediately after his retirement which did not enable him to assist the applicant; and

    c.He lost his job as a kitchenhand at Menzies Hotel in Sydney, when it closed, causing him a loss of pay of $600 per week. The applicant was able to obtain alternative employment approximately two months later as a casual with an agency, but the pay he received was substantially less than that he received at the Menzies Hotel;

    which caused the applicant to be unable to meet his tuition fees at SCSB and he ceased being enrolled by reason of those financial problems because he did not meet the tuition costs. He claimed that he intended to pay by way of instalments. The applicant gave evidence that he believed that his enrolment in the course ceased in early 2018.

15. However the applicant did not produce any documentation which corroborated his evidence and the reasons as to why he was not enrolled.

16. When the applicant was questioned about the period stated in the Decision Record that he was not enrolled from 15 August 2017 to 13 May 2018, the applicant conceded and accepted that he was not enrolled in a course of study during that period.

17. On 17 April 2018, the Department provided him with a Notice of Intention to Consider Cancellation of the Visa (NOICC) because he had not been enrolled since 15 August 2017, being a period of seven months.

18. However the Decision Record confirmed that the applicant was able to re-enrol in the Advanced Diploma course and on 26 April 2018, he obtained a new CoE to study at SCSB from 14 May 2018 to 10 May 2019. The applicant confirmed in evidence that he was in negotiations with SCSB on Friday 27 April 2018 to get re-enrolled before responding to the NOICC.

19. The applicant did not respond to the NOICC.

20. Based on the applicant’s evidence and his concessions, he was not enrolled in a registered course of study from 15 August 2017 until 26 April 2018 being a period of eight months and 11 days which is a substantial period of time not to be enrolled.

21. Accordingly on the evidence before the Tribunal the applicant was not enrolled in a registered course between 15 August 2017 and 26 April 2018. Accordingly the applicant has not complied with condition 8202(2) of his visa. As this was a condition which was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    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 Procedures Advice Manual (PAM3) ‘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 or to remain in Australia

23. The applicant gave evidence that he came to Australia to study and undertake the master’s degree and advanced diploma as discussed above. 

24. Notwithstanding that the applicant has been in Australia since February 2015, being more than four-and-a-half years, he has completed a master’s degree and partly completed an advanced diploma. If the visa had not been cancelled, he would have re-enrolled to complete the advanced diploma. He gave evidence that he was directed to cease studies in the advanced diploma course by the education provider when his visa was cancelled.

25. The applicant gave evidence at the hearing that essentially his non-enrolment on 15 August 2017 arose by reason of the financial circumstances set out above.

26. The period of non-enrolment from 15 August 2017 until 26 April 2018 is a period of eight months and 11 days which is a substantial period of time not to be studying in Australia which creates some doubt as to whether the applicant travelled and stayed in Australia for the purposes of study.

27. The applicant has given evidence that if possible he intends to remain in Australia to utilise a course of study in either project management or research to complement his studies and current position at CSR.

28. Having regard to the applicant’s evidence the Tribunal accepts that the applicant has travelled to Australia and stayed in Australia intending to study and that he does intend studying in the future.  The Tribunal gives this matter significant weight towards the visa not being cancelled.

    The extent of compliance with visa conditions

29. The applicant gave evidence that he was not enrolled in a course of study from 15 August 2017 until 26 April 2018 being a period of nearly eight-and-a-half months which is a substantial period of time.  Therefore the applicant has not complied with condition 8202(2) for a significant period of time.  The non-compliance with condition 8202(2) for a substantial period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or that he was not responsible for the reason of non-enrolment. 

30. The applicant has indicated that the reasons for non-enrolment were financial reasons as set out above.  The applicant was given the opportunity to file documentation with the Tribunal after the hearing supporting his application relating to his financial circumstances, his relationship and employment. The applicant did not provide any documents in support of his application and that corroborated his evidence. In such circumstances, the Tribunal is not satisfied by the applicant’s evidence as to the explanation for the reasons for which he was not enrolled.

31. Further the Tribunal finds that with regard to the reasons for the non-enrolment, it is the responsibility of the applicant to ensure that he has sufficient financial resources to meet his tuition fees.

32. Having regard to the period of non-enrolment and that he was having difficulties in meeting the tuition fees for his courses, and the duration of the breach, the Tribunal gives it some weight towards the visa being cancelled.

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

33. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

34. The applicant gave evidence that he is currently employed at CSR as an Internal Consulting Engineer earning $65,000-$68,000 per annum and that he is remitting part of those funds back to Nigeria to help out his father who is retired and help support his youngest sibling who is studying at university in Nigeria. He further gave evidence that if he had to return home, he would need to obtain employment and look after his father which may be difficult as his employment prospects in Nigeria in his field of study would not be strong.

35. The applicant claims that he is entitled to work full time by reason of the terms of his current bridging visa. However the applicant is aware that the visa he has obtained is a temporary one and it is to study and not facilitate full-time employment.

36. Even if the cancellation is set aside, he will be expected to change his role and he will be required to work in accordance with the conditions on his visa, which will reduce the income available to support his family.

37. Further the applicant claims that the cancellation will create a degree of hardship on him and his partner if he is required to leave Australia. The applicant gave evidence that he is in a domestic relationship with his partner, who is an Australian citizen. They have been living in Sydney together for over a year. In the middle of this year, his partner’s mother passed away. His partner has been depressed and is grieving and has been unable to work. The applicant has been looking after her and taking care of her financially. If the visa is cancelled he would have to leave the country and his partner would be affected substantially by his departure. It would also severely impact their relationship.

38. However the applicant is able to continue their relationship in Nigeria and there was no evidence put before the Court that the applicant could not continue their relationship in Nigeria, if he was required to leave Australia.

39. The applicant gave evidence that if he left Australia and returned to Nigeria, he would need to live with his father and attempt to get work, likely to be outside his course of studies. He claims that such consequences would hit him hard.

40. While the impacts of cancellation would create some hardship, it is important to note that the student visa is a temporary visa and absent any other visa obtained by the applicant, the applicant will be required to return home once that visa expires or comes to an end.

41. The Tribunal finds that these above matters are the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

42. The Tribunal considers that the above matters give significant weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

43. 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.

44. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

45. Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.

46. The applicant knew and was aware that by not being enrolled in a registered course of study he would have been in breach of condition 8202 and that his visa may be cancelled.

47. The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to his visa and the applicant was not enrolled for a period of nearly eight-and-a-half months which is a substantial period to be in breach of the visa.

48. The applicant claims that the circumstances of the cancellation arose from a change in his financial circumstances which resulted in him being unable to meet his tuition fees.

49. The Tribunal has considered the applicant’s explanation for why he was not enrolled for this substantial period and therefore in breach of condition 8202(2). The Tribunal notes that the applicant was able to get re-enrolled before the visa was cancelled, but it does not accept the circumstances were beyond his control. The Tribunal does not accept the applicant’s circumstances were such that they indicate a reasonable explanation for not being enrolled for such a period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

50. According to the Decision Record, the applicant did not respond to the NOICC. The applicant claims that he failed to respond to the NOICC as he only had a short period of time to respond and he was in communications with SCSB to reinstate his enrolment before responding to the Tribunal.

51. Further there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

52. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

53. If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he may need to depart Australia and apply from overseas for most types of further visas.

54. Further, if the Tribunal decides to affirm the decision to cancel the TU500 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013 of Schedule 4 to the Regulations, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

55. However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.

56. The applicant gave evidence that if the visa remained cancelled he would be applying for a domestic partner visa but he would return to Nigeria if he was required to do so and therefore there is no indication that he would become unlawful or be subject to detention.

57. Accordingly the Tribunal gives this factor some weight towards the visa not being cancelled.

    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

58. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Nigeria and he did not give any reasons as to why he could not return to Nigeria and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.

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

59. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

60. The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.

    DECISION

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

    Michael Biviano
    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.