Ampofo (Migration)

[2019] AATA 1357

Ampofo (Migration) [2019] AATA 1357 (24 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Isaac Boahene Ampofo

CASE NUMBER:  1715561

HOME AFFAIRS REFERENCE(S):           BCC2017/1569450

MEMBER:Helen Kroger

DATE:24 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 24 April 2019 at 1:10pm

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 – financial instability – emotional distress – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 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 14 July 2017 made by a delegate of the Minister for Immigration and Border Protection 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 applicant, Mr Ampofo, a Ghanaian national, was granted a visa on 3 June 2015 for the purpose of studying in Australia.

3. On the 8 June 2017, Mr Ampofo was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant provided a statement of explanation to the Department on the 11 June 2017.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the 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.

5. The applicant provided a copy of the delegate’s decision record to the Tribunal for its consideration.

6. The applicant appeared before the Tribunal on 4 April 2019 to give evidence and present arguments.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant arrived in Australia in June 2015 for the purpose of studying a Diploma and Bachelor of Business at Deakin University, Burwood campus. He was issued a NOICC on 8 June 2017 and provided a written response to the Department on 11 June 2017 explaining the circumstances around the time that his COE was cancelled and the sequence of events at that time.  At the hearing, the alleged breach (as discussed by the delegate in his/her decision record), was put to the applicant, with particular regard to the time of the cancellation of his COE and the alleged breach of 11 months during which he was not enrolled. The applicant did not dispute this breach, explaining that he wasn’t attending classes due to reasons he described as financial and emotional. He indicated that the classes were assessed on the basis of academic achievement along with attendance, and that he failed to pass a majority of units in the 18 months he was registered, as he stopped attending classes in the third semester, and could not recall whether he passed any units in that semester. He indicated that he had a low attendance record in the previous semester, although his attendance was sufficient to pass the three units he was enrolled in.

11. On the evidence before it, namely the applicant’s admission during the hearing, the Tribunal finds that 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

12. 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’.

13. The information provided to the Tribunal at the hearing along with the applicant’s written explanatory statement to the Department has been considered by the Tribunal in its exercise of discretion as outlined below.

    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

14. The applicant, Mr Ampofo, commenced a Diploma in Business in June 2015, with the intention of continuing to undertake a Bachelor of Business, at Deakin University. He indicated that as the eldest of four children, he was a role model to his siblings, and that he travelled to Australia to study in an endeavour to improve his opportunities and potential circumstances. He indicated that he commenced a Diploma in Business, successfully completing 3 out of 4 units in the first semester, 3 units in the second semester, and did not subsequently attend classes, withdrawing from the course that led to the cancellation of his COE by Deakin.

15. He indicated at hearing that following his arrival in Australia, he travelled to Sydney and wished to move and study there, but was advised that he couldn’t transfer until he had completed six months of his enrolled course, and returned to Melbourne.

16. The applicant explained the sequence of events relating to his financial and emotional circumstances to the Department in a response to the NOICC, dated 11 June 2017, that is extracted below.

    Financial instability was a major cause for my absence from school. Due to the bad governance of our previous government, my dad's business suffered a huge loss and downfall as well. As a result of this money to pay my fees became an issue as I have three sisters at home who are also schooling as well. Things got very bad and I struggled to make ends meet. I then had to enroll in an aged care certificate program with the aim of landing myself a job in that industry but couldn't find any even when I had graduated in that area. I then found a job in the manufacturing sector where I had secured a job as a personal assistant to the project manager .this was possible due to the little knowledge I had gathered from my course of study at university. This helped me to feed, pay my rent and save for university as well.

    Moreover, the death of my roommate who was a Ghanaian as well greatly affected me as I considered changing universities. I couldn't bear the pain and emotional trauma I had to go through coming back to the same university and room as it kept on reminding me of him.

    So the above reasons were what kept me away from school until things got better after we had a change of government which helped my dad's business rise again for me to be able to go back to university again. I would be glad and very thankful if u rescinded your decision to cancel my visa so that I can achieve my main purpose of coming to Australia which is to get my degree and return to my country and family a proud and successful son but not a failure because they have invested in me. Please kindly consider my sincere reasons.

17. The applicant was invited to comment on this explanation at hearing. Whilst indicating that he wished to move to Sydney to study after arriving in Australia, he explained that a change of Government in Ghana directly impacted his father’s business, and consequently his capacity to finance his son’s studies. He indicated that this was one of the reasons why he only enrolled in 2 units in the third semester, although the Tribunal gives this little weight, as the applicant had earlier told the Tribunal that he didn’t attend classes during this semester.

18. Mr Ompofo, told the Tribunal that he was no longer interested in a business degree and wished to study nursing. Documents provided to the Tribunal (Folio 7), indicate that the applicant received a letter of offer from Holmesglen, to commence a Diploma in Nursing, and was advised that the next available intake was July 2017. The education provider had considered the application initially for a semester 1 commencement date in early 2017. Whilst the Tribunal recognises that this communication was initiated prior to the issuance of the NOICC, it considers the period of time between this nursing application confirmation and the applicant’s withdrawal from studies in 2016 to be significant. He completed a Certificate III in Aged Care (folio 38), dated 11 July 2016. He claimed at hearing this was to assist him into successfully enrolling in nursing whilst in his explanatory statement to the Department, he indicated this was to help him find work. Notwithstanding these conflicting claims, the Tribunal is satisfied that the applicant was motivated by both factors although recognises that within a timeframe of less than eighteen months, that the applicant first sought to transfer to a College in Sydney after his arrival, had a consistent poor attendance to class as indicated by the applicant at hearing, and has since demonstrated an interest in studying nursing.

19. The Tribunal has considered the explanation provided at hearing by the applicant along with the documentation provided to the Department and the Tribunal, and whilst it finds inconsistencies with some of the applicant’s evidence and the emphasis he placed on some of the factors relating to his poor class attendance, the Tribunal finds that the applicant is genuine in his wish to complete a qualification in Australia, although it acknowledges that the applicant’s reasoning includes economic opportunities that may be available to him whilst staying in Australia.

20. The Tribunal gives some weight to these factors in favour of the applicant compared to any weight given to cancelling his favour.

    The extent of compliance with visa conditions

21. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal has considered the breach of seven months, at the time the NOICC as issued, and recognises that there appears to be no additional breaches.   Accordingly, the Tribunal gives these findings some weight in favour of the visa remaining cancelled.

    Circumstances in which ground of cancellation arose

22. As outlined above, the applicant provided the Department with an explanatory statement regarding the circumstances leading up to the cancellation of his visa and he was invited to comment on these further at hearing.

23. Mr Ompofo indicated that the continuing financial problems, with his father not being able to assist with the tuition fees, following the change of government, created immediate problems. The Tribunal sought clarification on this and what was used during the Department’s assessment of his application, to demonstrate that they had the capacity to fund tuition fees. The applicant submitted that he showed a bank account with substantial cash reserves, and that he thought that his father may have used these funds, although wasn’t clear on this to the Tribunal.  He explained that he was required to work to support himself and that he tried to save money for future fees. He later indicated that he currently provides financial assistance for his now partner and her two teenage children. The Tribunal has considered the applicant’s explanation that he needed to work to save money for his tuition fees and his submission that he was not attending classes from his course commencement that was not directly connected to his tuition payments.  The Tribunal has considered these explanations and whether they were outside the applicant’s control and in view of the nature and conditions attached to a student visa, and that the primary purpose of the student visa is for study not work and accordingly gives some weight to the reasons given by the applicant.

24. He explained to the Tribunal that he moved in with a fellow national on his arrival in Australia, sharing a residence. This acquaintance/friend drowned in a tragic accident three months later, and caused the applicant much distress. He claims that he suffered anguish in returning to the shared residence and the college following the friend’s death.  He indicated that he did not seek compassionate circumstances for his studies, consider deferring from his course, or consider returning home to deal with these personal circumstances. The applicant confirmed that his friend passed away during his second semester, and whilst the Tribunal acknowledges the tragedy of this event, has considered the fact that the applicant successfully completed three units during this semester, and didn’t stop attending classes until the third semester. The applicant previously submitted to the Tribunal that the reason he only enrolled in 2 units in the third semester was due to his financial circumstances, and was not consistent in his submissions regarding this, and his assertion why he didn’t attend classes.  The applicant was unable to detail what units he had enrolled in for semester 3 and what his results were for those subjects and the Tribunal in considering this, does not find it plausible for the applicant to be genuine in his intent to study and not be aware of what his subjects he enrolled in.

25. The Tribunal has carefully considered the various submissions provided by the applicant to the Department and the Tribunal finding that they are neither consistent nor plausible.  Whilst the Tribunal has great sympathy for the tragic drowning and the inevitable distress caused, there is nothing before the Tribunal to indicate any considerations the applicant may have undertaken, any communications with his College for special consideration, residential changes made, or endeavours to access overseas students’ counselling available on campus.

26. Given these circumstances as outlined above, the Tribunal gives little weight to the reasons why the applicant was not enrolled in a registered course of study and more weight in favour of the cancelling the visa.

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

27. Mr Ompofo is the eldest of four children, and travelled to Australia to study with the intent of improving his overall circumstances and opportunities.  His father who is engaged in the construction business, held contracts with the previous government, and has repositioned and strengthened the business, after three years.

28. The applicant indicated that he is a role model as the eldest in the family and the personal distress that would be caused should his visa be cancelled.  He submitted that it would be particularly embarrassing for his family and submitted to the hearing that he has been in a relationship with an Australian resident for the last 18 months. This partner attended the hearing to support the applicant, with her two teenage children.

29. The applicant claimed that she is a single mother and that he assists her directly by paying for household bills and items for the children and that she would be significantly disadvantaged should his visa be cancelled.

30. There is nothing before the Tribunal to indicate that the applicant would not be initially supported by his father should he return to Ghana and that he would assist him, whether that be studying locally or seeking employment.

31. The Tribunal recognises that a visa cancellation would cause some initial distress and it does not find that this is unusual should the visa be cancelled. It has carefully considered the financial circumstances as described by the applicant and is satisfied that whilst the applicant’s partner provides some support, it recognises that this support has only been provided for the last 18 months, and that the applicant’s partner has managed her financial and personal circumstances adequately up to this time.

32. Whilst the Tribunal recognises that a visa cancellation would cause some emotional distress and may cause some financial difficulties, the Tribunal finds on the overall evidence that he has not demonstrated sufficient hardships to the Tribunal and accordingly, gives this factor little weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the department

33. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings and gives this factor some weight in favour of the applicant and not cancelling the visa.

    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

34. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart and would be provided with a time limited period in which he can leave the country or apply for a review of the decision. The Tribunal accepts that the applicant may be barred from applying and being granted a visa which would allow him to re-enter Australia for three years. This is not unusual or atypical when visas are cancelled. The applicant has indicated that he has a partner, and should the visa cancellation remain, the Tribunal recognises that the applicant may not be able to apply for an on-shore partner’s visa, but that he could apply for an off-shore partner’s visa, and considers that whilst they may be separated, that the period of time of that separation would not be so significant to influence the Tribunal’s decision. Accordingly the Tribunal only gives this little weight towards the visa not being cancelled.

    Whether any international obligations would be reached as a result of a cancellation

35. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

36. The evidence before the Tribunal indicates that the applicant was aware of the conditions attached to his student visa and that he attempted to comply with condition 8202 with an attempt to enrol in a nursing diploma in July 2017, whilst conceding that he withdrew from his business studies in 2016. The applicant has submitted a number of reasons for the Tribunal’s consideration, including his difficulty upon his arrival to Melbourne, the fact that he only knew people in Sydney and wished to move there, his father’s incapacity to continue his financial support for the tuition fees and his friends tragic drowning. Whilst the Tribunal acknowledges that these circumstances may have made it difficult for the applicant to study, it is not satisfied with the timing of these circumstances and the attested effect on his studies. In his evidence, the applicant indicated that he was properly enrolled in two units in semester 3, and the Tribunal was not persuaded by the inconsistencies regarding why the applicant did not attend class and later withdrew. At no time, has the applicant sought special consideration from the College in relation to his enrolment nor did he seek to defer the course to deal with the personal circumstances.

1. The Tribunal has considered these relevant matters and give them some weight in favour of cancelling the visa.

2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

   DECISION

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

   Helen Kroger
   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.