Awolusi (Migration)

[2019] AATA 2572

Awolusi (Migration) [2019] AATA 2572 (6 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Foluso Rotimi Awolusi

CASE NUMBER:  1835151

HOME AFFAIRS REFERENCE(S):           BCC2018/4062106

MEMBER:Christine Kannis

DATE:6 July 2019

PLACE OF DECISION:  Perth

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 06 July 2019 at 1:30pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – procedural fairness afforded by the Department – role of the Tribunal – de novo hearing – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – circumstances beyond applicant’s control – depression – wife’s miscarriage – death of family member – loss of financial support – difficulty in obtaining deferment – reasonable steps to mitigate situation – degree of hardship – separation from wife and unborn child – Convention on the Rights of the Child – best interest of child – decision under review set aside

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

CASES
BCR16 v MIBP (2017) 248 FCR 456
COT15 v MIBP (No 1) (2015) 236 FCR 148
Ibrahim v MHA [2019] FCAFC 89
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 23 November 2018 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 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 17 June 2019 to give evidence and present arguments. The applicant also received evidence from Mrs Aleena Awolusi. 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 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.

   Did the applicant comply with Condition 8202?

7. On 15 June 2015 the applicant was granted a visa in Subclass 573 Higher Education 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. The delegate stated that the applicant’s enrolment in a registered course was cancelled on 26 November 2017. Information from the Provider Registration and International Student Management System (PRISMS) shows the applicant was not been enrolled in a registered course of study when his enrolment in a Bachelor of Engineering (Electrical Power) was cancelled on 24 November 2017. PRISMS shows his enrolment in a Bachelor of Engineering (Electrical Power) was deferred from 16 August 2017 to 25 November 2017.   

9. The Tribunal acknowledges the applicant’s deferment ended on 25 November 2017 however PRISMS shows his enrolment was cancelled on 24 November 2017. The two day difference does not impact on the Tribunal’s decision. Having regard to the information in the PRISMS including the deferment details, the Tribunal finds that the applicant ceased to be enrolled in a registered course on 26 November 2017. 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. There are no matters specified in the Act or Regulations that must be considered in the exercise of the s.116 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’, as set out below.

12. On  8 November 2018 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.  The NOICC advised the applicant that he must provide a response within five working days and if no response was received within the time frame a decision on whether to cancel the visa would be made using the information available at the time of the decision. The applicant did not respond within the specified time frame.

13. The Tribunal noted that after the issuing of the NOICC the applicant enrolled in a Bachelor of Engineering (Electrical Power) and a CoE created on 22 November 2018 was provided.

14. Prior to the hearing the applicant’s representative provided the Tribunal with documentation which included but was not limited to a written submission and correspondence from Edith Cowan University (ECU).

    Pre-hearing written submission

15. The written submission contended that the applicant had not been afforded procedural fairness by the Department because a decision to cancel the visa was made before he had an opportunity to present his case. The denial of procedural fairness was said to constitute jurisdictional error because the delegate did not take into account relevant considerations in making the cancellation decision.

16. The applicant did not respond to the NOICC within the specified time frame. On 21 November 2018 the representative requested an extension of time to respond to the NOICC until 30 November 2018.  On 22 November 2018 the Department granted a five working days extension and stated- “Your response is now due by 22 November 2018”. On 23 November 2018 the decision to cancel the visa was made. The representative contended the five day extension should have run from the date of the advice of the extension and the Department relied on the five day extension running from the end of the time period specified in the NOICC.

17. The Tribunal acknowledges the confusion which arose from the Department’s advice that a five day extension of time for a response had been granted and that the response was due on 23 November 2018.  It is not generally part of the Tribunal’s role to examine the procedures followed by the Department to ensure that the statutory requirements have been met and the Tribunal makes no findings regarding whether the applicant was denied procedural fairness by the Department. The role of the Tribunal is to conduct a hearing de novo of the merits of the application for review. To the extent that the applicant considers he was previously denied procedural fairness that has now been addressed by his participation in the hearing before the Tribunal and the pre-hearing written submission.

18. The written submission referred to Direction No. 61 and r.2.43(2)(b)(ii)(B). These provisions relate to mandatory cancellation of student visas and revocation of automatic cancellation of student visas. These provisions were repealed on 13 April 2013. They are not relevant to the present case and in any event are no longer in force.

19. Regarding the merits of the application for review the written submission provided the following information:

    ·The applicant was enrolled in a course at the time of cancellation and his non-enrolment at the time the NOICC was issued was due to factors beyond his control.

    ·The delegate did not fully consider the matters prescribed by the relevant guidelines including international law obligations and failed to consider the family unity principles contained in the ICCPR.The applicant has family in Australia whose interests would be affected if his visa is cancelled. The applicant has applied for a New Zealand Relationship visa.

    ·The applicant applied for a deferral in November 2017 due to unfortunate personal circumstances that led to his becoming depressed. The deferral was granted until February 2018.

    ·When the deferral expired the applicant called the school and said his spouse had suffered a miscarriage due to attacks by her ex-partner and she needed his support, He was told his request would be actioned.

    ·In March 2018 the applicant received mail that as he had not enrolled in units for Semester 1 2018 he had been discontinued from his course at Edith Cowan University (ECU). He called ECU and asked why despite the assurance he received that his request would be actioned and that ECU would get back to him, he had not received a response. They apologised and asked him to apply to resume his course the following semester and if the process was not working to contact Student Council.

    ·He then contacted Student Council and was told it was too late to enrol in the course for Semester 2 2018 and that enrolments for Semester 1 2019 commenced in November 2018. In November 2018 he enrolled in a course for Semester 1 2019.

    ·There were exceptional circumstances relating to the applicant’s lack of enrolment at the time the NOICC issued including the illness and miscarriage suffered by the his spouse as a result of stress and consistent attacks by her former partner, the psychological trauma that these events had on the applicant’s ability to study and the conduct of the applicant’s school in providing him with an opportunity to re-enrol at the end of his intermission period.

    Applicant’s oral evidence at hearing

20. The applicant’s evidence at hearing was not materially different to the information in the written submission. He said when his deferment ceased, which he understood to cease in February 2018, he was dealing with personal issues beyond his control which resulted in his non-enrolment. He was depressed and had financial problems. His depression was due to family problems including the death of a cousin, his uncle suffering a stroke, his wife having a miscarriage and ongoing verbal and physical abuse by his wife’s former partner. His uncle had been sponsoring his study in Australia and following his stroke he was unable to work and provide financial assistance. Financial support from his cousin also ceased on his cousin’s death.

21. The applicant told the Tribunal that his wife had a miscarriage in January 2018. Mrs Awolusi told the Tribunal she believed the miscarriage was caused by the stress she was under as a result of her former partner’s violence. She had no medical evidence to substantiate this contention.  Mrs Awolusi has a five year old son from a previous relationship. The applicant said he accompanied his wife every week to deliver her son to her former partner. At handover the former partner was verbally abusive and sometimes physically attacked them. Mrs Awolusi obtained an interim Family Violence Restraining Order (FVRO) on 31 January 2018 and the Order was made final on 25 July 2018. The applicant obtained a FVRO on 28 December 2018.

22. The applicant said he believed he had been granted a deferment until February 2018. PRISMS indicates the deferment ceased on 25 November 2017. He said in February or March 2018 he called ECU and explained his mental and financial circumstances as well as his wife’s miscarriage and requested a further deferment. He contended that his failure to re-enrol was due to circumstances beyond his control. He told the Tribunal that ECU sent him an email which confirmed this call and advised that they would revert to him. They didn’t revert to him and so in April or May 2018 he attended Student Help at ECU and asked about the deferment. The applicant told the Tribunal that despite ECU again saying they would revert to him, they failed to do so. He said sometime after July, “maybe August or something”, he contacted ECU and was told it was too late for him to enrol in Semester 2, 2018.  He was told enrolments for Semester 1, 2019 opened in November 2018 and he obtained a CoE dated 22 November 2018.

23. When asked about the hardship that may result from cancellation of his visa the applicant said he would be financially disadvantaged because he would not be able to work and study in Australia. He would not be able to support himself through his study and he would not be able to pursue a career in Engineering (Electrical Power). He and his wife are expecting a baby at the end of the year and life would be hard for her if he has to depart Australia.

24. The Tribunal asked the applicant whether his wife could depart Australia with him pending the outcome of his application for a Subclass 461 visa. He said they would both suffer mentally and financially in Nigeria. Mrs Awolusi told the Tribunal that apart from one aunt she has no family in Australia. She said the applicant is the only person who supports her emotionally and financially. She is currently pregnant and she depends on the applicant. Mrs Awolusi said she cannot depart Australia because there is a Family Court Order in place restraining her from removing her son from Australia without the other parent’s consent. The Tribunal was provided with a copy of the Order. The Tribunal accepts that given the acrimony which clearly exists between Mrs Awolusi and her former partner, proceedings to allow her to remove the child from Australia even temporarily would likely be costly and lengthy.

    Representative’s submissions at hearing

25. The representative conceded that the applicant had breached condition 8202 but said the breach was from February 2018 to November 2018 and contended that this was a short period of time and that this should be taken into account by the Tribunal. He submitted that the breach arose due to extenuating circumstances beyond the applicant’s control. In support of this he relied on the death of a family member who provided moral and financial support, the loss of financial support from the applicant’s uncle, the attacks by Mrs Awolusi’s former partner over several months, Mrs Awolusi’s dependence on the applicant, the emotional trauma of the miscarriage and the cost of the FVRO proceedings.

26. The representative submitted that prior to these events occurring the applicant had been a model student and from February 2018 he made attempts to re-enrol. The Tribunal noted that the applicant’s evidence was that he attempted to obtain a deferment and that he was not mentally and financially able to re-enrol.

27. The representative said the applicant had been denied procedural fairness by the Department. He said if the Department had taken into account the applicant’s mental state, family circumstances, financial circumstances and his re-enrolment on 22 November 2018 it would have possibly made a different decision.

28. The representative said cancellation of the visa would result in Australia breaching its non-refoulement obligations as well as its obligations under the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention on the Rights of the Child (CROC).  Regarding non-refoulement the Tribunal noted that in his evidence the applicant said his intention was “of course” to return home after he completed his study. When asked about hardship that might result from cancellation he did not express any fear with respect to returning to Nigeria. Given the representative’s submission with respect to non-refoulement, the Tribunal asked the applicant whether he feared returning home. In contrast to his earlier evidence he said there was terrorism in his country and he was afraid of being attacked or kidnapped. The Tribunal did not find the applicant to be a credible witness in this regard.

29. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

30. The purpose of the student visa is to enable the visa holder to undertake study in Australia.  Based on the applicant’s own evidence as well as that referred to in the delegate’s decision, the applicant has not been engaged in studies since 26 November 2017.

31. The applicant told the Tribunal his purpose in coming to Australia was to study Engineering (Electrical Power). He intends to return home and use his knowledge to improve the existing circumstances. He obtained a Diploma of Science and completed one semester of his Bachelor degree course before his mental and financial circumstances caused him to not be enrolled in a registered course.

32. The Tribunal accepts that the applicant was granted a deferral from August 2017 to November 2017. The applicant contended that he was granted a deferral until February 2018. An undated letter from ECU advised the applicant that enrolments for Semester 1, 2018 were open in November 2017 and accordingly the Tribunal is prepared to accept that the applicant may have believed he had been granted a deferral until February 2018.

33. The applicant was aware from at least March 2018 that he was no longer enrolled as student. He did not contact the Department to discuss his non-compliance with the condition of his visa. The applicant would have been informed of the conditions that attached to his visa at the time of the visa grant. 

34. At the time the NOICC issued the applicant had not been enrolled in a registered course for 12 months.

35. The Tribunal acknowledges that the applicant obtained a CoE for a Bachelor degree course following receipt of the NOICC.  This was created 12 months after his enrolment was cancelled. However, in the Tribunal’s view, a breach is established once the applicant ceased to be enrolled in the relevant course, despite any subsequent re-enrolment.

36. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. 

37. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said he wants to complete his study and stay with his wife and stepson and be here when his baby is born. The Tribunal questioned whether the applicant’s wife and unborn child could return to Nigeria with the applicant if his visa was cancelled. For the reasons referred to previously this is not a realistic option.

38. The Tribunal finds there are personal reasons which would go towards being compelling reasons for the applicant to remain in Australia.  The Tribunal accepts Mrs Awolusi’s evidence that the applicant provides her with emotional support and that she requires this support on an ongoing basis particularly in dealing with her former partner. The Tribunal takes into account that there are legal restrictions on Mrs Awolusi leaving Australia with her son. The Tribunal gives this some weight favour of the applicant.

    The extent of compliance with visa conditions

39. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions and the Tribunal gives this some weight in his favour.

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

1. The applicant and his wife are expecting a child later this year and evidence of the estimated date of delivery (15 November 2019) was provided. Mrs Awolusi became visibly distressed during the hearing when discussing the possibility of the applicant having to depart Australia. She has the primary care of her son and has an acrimonious relationship with her former partner. She has a FVRO against him which is due to cease in July 2019.  Except for one aunt, Mrs Awolusi has no family in Australia. She clearly depends on the applicant for physical and emotional support. She is restrained from taking her son out of Australia without the other parent’s consent.

2. The Tribunal accepts that the cancellation of the applicant’s visa may result in a temporary or a permanent separation from his wife and their unborn child.

3. The Tribunal is satisfied that cancellation of the visa would cause significant emotional hardship to Mrs Awolusi.  The Tribunal also notes the expected baby in November 2019 and the emotional impact it could have on the baby being separated from its father for an extended period of time.

4. The Tribunal finds this consideration weighs in favour of the applicant.

   The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

5. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant provided a variety of reasons for this failure including that he was depressed, that he was providing his wife with support, that he lost his financial support and that ECU did not act on his request for a deferral.

6. No medical evidence was provided to substantiate the diagnosis or treatment of the applicant’s depression in 2018. 

7. There is also no emails or documented exchanges between the applicant and ECU that he requested a deferment or suspension of his studies in 2018 or that he tried to mitigate his non-compliance with condition 8202 at any earlier date than the issuing of the NOICC.

8. The Tribunal notes that even if the applicant had difficulty in obtaining a deferment from ECU after February 2018, this does not relieve him of his responsibility to comply with the conditions of his visa.  The applicant was aware from at least February 2018 that he was no longer enrolled in a registered course. The Tribunal does not accept that the applicant made consistent genuine attempts to obtain a deferment or re-enrol. 

9. The Tribunal accepts that some of the applicant’s stressful circumstances were genuinely beyond his control and it is accepted that some were worthy of compassionate consideration. His cousin’s death and his uncle’s stroke were beyond his control. He claimed his mental state which resulted from his family and his wife’s circumstance was an extenuating circumstance beyond his control. In taking the applicant’s mental state into account the Tribunal acknowledges he has endured distress however, he did not take any practical measures to address his migration status, to remain compliant with the conditions on his visa or seek out medical or psychological assistance which may have assisted him in overcoming these challenges.

10. Overall, the Tribunal finds the claimed reasons for extenuating circumstances that were beyond his control not to have been supported by the available evidence and unpersuasive. None of the reasons put forward by the applicant indicated circumstances that were beyond his control in the sense they were credible barriers to maintaining enrolment in a relevant course or continuing related studies that would indicate to the Tribunal the applicant’s purpose in remaining in Australia was to study.  On the evidence before it, the Tribunal does not accept the circumstances were exceptional or beyond the applicant’s control in remaining complaint to condition 8202 as grounds for cancellation and gives these arguments little weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the department

11. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

12. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is 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

13. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s.189 and removed from Australia pursuant to s.189 of the Act. Further, s.48 of the Act means that he will have limited options to apply for further visas in Australia.  The applicant may also be subject to Public Interest Criterion 4013 which could result in a 3 year exclusion period.

14. The Tribunal has concerns regarding the possibility of the applicant having to serve a 3 year exclusion period. The applicant and his wife presented to the Tribunal as a genuine and committed married couple with a strong desire to maintain their family unit which will include the expected baby in November 2019.  Mrs Awolusi spoke of the legal restrictions on her removing her son from Australia. She said it would be very difficult emotionally to be separated from the applicant for such a long period of time.

15. The Tribunal does note that these are the consequences of a visa being cancelled pursuant to the legislation. However, in balancing the potential hardship to the applicant’s family if his visa is cancelled the Tribunal gives it substantial weight in the applicant’s favour.

    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

16. Having carefully considered Australia’s non-refoulement obligations and noting that the applicant’s claims at hearing, the Tribunal is not satisfied that the applicant would face treatment of a kind that would be contrary to Australia’s non-refoulement obligations under the international instruments to which it is a signatory. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to an international instrument or any obligations accorded by customary international law that are of a similar kind.

17. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations. As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal. There is nothing in the applicant’s circumstances which prevents these claims of harm being canvassed in a protection visa application. There is no suggestion that the applicant is prevented from validly applying for or being granted a protection visa by s.48A of the Act or because of any character issues or any other criteria: see BCR16 v MIBP (2017) 248 FCR 456. The Tribunal therefore gives this no weight in the applicant’s favour.

18. The Tribunal notes the applicant and his wife are expecting a baby in November 2019 and has accordingly considered the ICCPR and the CROC in respect of Australia’s international obligations.

19. The Tribunal has taken into account that the consequences of the cancellation of this visa are that the applicant is likely to be placed into immigration detention until the Department makes a decision as to his removal from Australia, which is of unknown duration, and that he will be separated from wife and his unborn child on a temporary or a permanent basis. The Tribunal acknowledges that Mrs Awolusi is restrained from taking her son out of Australia without the other parent’s consent. This is a significant impediment to the unity of the family. The Tribunal considers that there is scope for potential breaches of international obligations if the applicant’s visa remains cancelled and accords this consideration significant weight.

    Any other relevant matters

20. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

21. The Tribunal has considered the totality of the applicant’s circumstances.  The Tribunal has found that the applicant has breached condition 8202 of his visa and acknowledges the seriousness of breaching that condition.

22. The Tribunal is mindful of the hardship that would be caused to family members if the applicant’s visa is cancelled (specifically the applicant’s wife and unborn baby) and Australia’s international obligations and CROC.  After reviewing the documents and receiving oral evidence from the applicant and his wife and carefully weighing up all the factors to take into account in exercising its discretion, the Tribunal concludes that the applicant’s visa should not be cancelled.

    DECISION

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