Egbonuba (Migration)

[2020] AATA 2126

Egbonuba (Migration) [2020] AATA 2126 (21 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arinze Uchechukwu Egbonuba

CASE NUMBER:  1919502

DIBP REFERENCE(S):  BCC2019/1472895

MEMBER:Vanessa Plain

DATE AND TIME OF

ORAL DECISION AND REASONS:         21 February 2020 at 2:54 pm (VIC time)

DATE OF WRITTEN RECORD:                1 May 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 May 2020 at 5:28pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – not enrolled in registered course – education provider closed – difficulties enrolling with other providers – father’s death – enrolment in course in another subject area after receiving department’s notice – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116

Migration Regulations (Cth), Schedule 8, condition 8202

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 July 2019 to cancel the applicant’s Subclass 572 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).

2. At the hearing on 21 February 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an application for review of a decision dated 15 July 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s subclass 572 vocational education sector visa under section 116(1)(b) of the Migration Act 1958.

4. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study.  The issue in the present case is whether that ground for cancellation is made out and if so whether the visa should be cancelled.  The applicant appeared before the tribunal on 21 February 2020 to give evidence and present arguments.

5. For the following reasons the tribunal has concluded the decision to cancel the applicant’s visa should be affirmed. 

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. If the applicant has breached that condition under section 116(1) of the Act the visa may be cancelled.

7. The first question for determination is whether or not the applicant complied with condition 8202.  As it applies in this case that condition requires that the applicant be enrolled in a registered course or in limited cases a full time course of study or training. 

8. In the present case the applicant’s visa was cancelled on the basis that the delegate formed the view, based upon information in the PRISMS record, that the applicant was not enrolled in a registered course between 4 May 2018 and 20 May 2019. 

9. A notice of intention to consider cancellation was issued to the applicant on 16 May 2019. 

10. The applicant responded in writing to the notice of intention to consider cancellation on 23 May 2019.  In that document the applicant admitted the grounds for cancellation but sought to explain and did explain extensively the reasons surrounding the cancellation.  In his response the applicant explained that he was not enrolled in a registered course of study from 4 May 2018 onwards because the education provider with whom he was originally commencing his vocational studies upon arrival in Australia closed in April 2018.

11. Indeed the tribunal has had regard to documents produced by the applicant at the hearing which are evidently emails from the education provider, namely the Australian College of Education Studies, sent to the applicant from the college administrator further demonstrating that the college was closing from 23 April 2018 onwards.  The education provider set out in that document that they have recommended that students make arrangements with the Sydney School of Business and Technology for the purpose of continuing study in Australia.

12. Further, the applicant stated in his response to the notice of intention to consider cancellation that during the period of approximately April/May 2018 to April/May 2019 the applicant suffered some difficulties with his family occasioned by the passing of his father in his home country.  This caused the applicant some distress because he was not able to travel home to pay his respects to his father on account of various issues that were transpiring with his family at the time.  He suffered some health difficulties on account of the passing of his father, he became withdrawn as a result of the difficulties in his family and being unable to return home for the funeral.

13. He spoke of his sponsor turning his back on the applicant as a result of matters that were transpiring with his family at home and he generally described the time of difficulty that he endured in Australia in May 2018 on account of these matters.  The applicant also described in his evidence the fact that he had paid for his course that ended up being cancelled as a result of the closure of the school and that caused some financial hardship.

14. Based on those matters the tribunal asked the applicant whether he agreed with the determination of the delegate as to the period in which he was not enrolled and the applicant informed the tribunal that he was not enrolled in a registered course between 24 May 2018 and 23 May 2019. 

15. Therefore on the basis of that evidence before the tribunal, the tribunal is satisfied that the applicant was not enrolled in a registered course between 4 May 2018 and 22 May 2019 and accordingly the tribunal finds that the applicant has not complied with condition 8202(2).

16. Having found that the applicant has not complied with the conditions of the visa the tribunal must now 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 procedure advice manual (PAM3) general visa cancellation powers.

17. It is clear that the applicant was granted a student temporary subclass 572 vocational education sector visa on 19 August 2016 for the purpose of undertaking vocational level studies at the Australian College of Vocational Studies being a Certificate III in travel and tourism, a diploma of travel and tourism and an advanced diploma of travel and tourism.

18. It is apparent based on the documents that I have just referred to, that the original education provider closed down and the applicant’s course was cancelled in April or May 2018 on account of the fact that the particular education provider in question ceased to trade. 

19. The applicant stated that he immediately took steps in April 2018 to seek to enrol at the Sydney School of Business and Technology.  The applicant sought to enrol in the same course which he was undertaking that became cancelled.  He gave evidence that he went to orientation at the Sydney School of Business and Technology and made enquiries about study at that particular education provider but the education provider did not provide a diploma of travel and tourism and an advanced diploma of travel and tourism.  In an effort to maintain the course of study which he had already embarked upon the applicant gave evidence that in May to June 2018 he took steps to enrol in the Australis Institute of Education and Technology.  He attended upon that education provider for the purpose of undertaking studies in a diploma of travel and tourism with a view to undertaking an advanced diploma of travel and tourism.

20. He was informed by the education provider that he would not be able to enrol in that course and receive credit for the study that he had already done without providing evidence of his academic achievement and results to date.  The applicant gave evidence that he contacted his original education provider, the Australian College of Education Studies, which had shut down for the purpose of procuring a copy of his academic results.  The education provider did not provide the academic results to the applicant and as a result of being unable to provide evidence of academic achievement to date he contended that could not enrol at the Australis Institute of Education and Technology in a diploma of travel and tourism at that time.

21. He decided at that point that rather than seek to obtain credit for studies he had already achieved that he would start again and commence study in a diploma of marketing instead.  He was able to procure an enrolment in a diploma of marketing that was to commence in approximately June 2019 and he did procure that enrolment which is in fact dated 23 May 2019 for the purpose of study in a diploma of marketing at the Australis Institute of Education and Technology.

22. However, there is a gap of approximately 12 months during which the applicant has not studied and therefore not been enrolled to study.  The applicant gave candid evidence that indeed he did not study during that period.  He said he tried to obtain enrolments with other providers during that period but informed the tribunal that it was a very difficult time in his life for that 12 month period and that he became withdrawn as a result of the understandable difficulties in his family as a result of the passing of his father in that period.  When things started to look up in his life in 2019 it was at that point that he decided to resume his studies again.

23. The applicant further gave evidence that due to the difficulties associated with his father’s passing, even if he had been enrolled in a course he would not have been able to focus on his studies for a few months as a result of those difficulties. 

24. The tribunal is satisfied on the basis of those matters that whilst the applicant has no compelling need to remain in Australia permanently and the applicant has demonstrated that his primary intention for coming to and staying in Australia was for the purpose of study the tribunal finds that the purpose ended in May 2018 when the applicant’s enrolment was cancelled and the period of non-enrolment is significant.  I give this some weight towards the visa being cancelled.

25. As to the circumstances in which the ground for cancellation arose, the ground for cancellation arose due to non compliance with condition 8202(2)(a). 

26. The tribunal acknowledges that it was certainly not within the control of the applicant that his first education provider closed in April 2018 and the tribunal is satisfied that he took steps to try and enrol in May 2018, or June 2018, in another course.  However, thereafter, the continuation of the visa breach in the approximate 12 month period between May/June 2018 and June 2019 cannot, on the evidence, be attributed to matters which were reasonably outside the control of the applicant.  The applicant has not provided an objectively reasonable explanation as to why he has not been enrolled in a registered course or taken steps to become enrolled in a registered course over a twelve month period. 

27. On the basis of the evidence set out above, the tribunal finds that the initial reason for the visa breach was not due to a matter within the applicant’s control, being the initial closure of his school, the fact that the breach continued for more than 12 months was not due to a matter that was reasonably outside of the control of the applicant.  The Tribunal acknowledges the challenges the applicant faced regarding the closure of his initial education provider and his father’s death, however, the tribunal is not persuaded that these issues can sensibly be the cause of a failure to be enrolled in any course of study for a period in excess of a year.

28. The tribunal gives this consideration some weight in favour of the visa being cancelled. 

29. As to a degree of hardship that may be caused to the applicant if the visa remains cancelled, the tribunal acknowledges that the applicant has suffered hardship as a result of the matters surrounding the death of his father and the financial hardship that has ensued as a result of the closure of his education provider.  The tribunal affords these matters some weight in favour of the applicant, however, the tribunal notes that it is the primary objective for a student visa holder in Australia to maintain enrolment in a registered course and to progress academically.  In view of the fact that the applicant has not undertaken studies for a period of 12 months, which is a significant period, the tribunal only affords the hardship that I have described some minor weight in favour of not cancelling the visa.

30. As to the applicant’s past and present behaviour towards the Department the tribunal notes that there is no evidence of any conduct other than good conduct on the part of the applicant insofar as his dealings with the Department are concerned.  Indeed the tribunal notes that the applicant responded promptly in writing to the notice of intention to consider cancellation and the tribunal notes that the applicant gave evidence at hearing entirely consistent with the matters set out in his response to the notice of intention to consider cancellation and the tribunal gives this good conduct some weight in favour of the visa not being cancelled.

31. There is no evidence of any persons in Australia whose visas would be consequently cancelled under section 140 of the Act as a result of the visa holder’s cancellation of his visa and therefore the tribunal does not give this factor in weight in favour of cancelling or not cancelling the visa.

32. As to whether there are any legal consequences such as whether cancellation would result in the applicant being an unlawful entrant into Australia and liable to detention the tribunal notes that if the visa were to be cancelled the applicant could be excluded from making certain applications for certain types of visas.  He may be liable to detention or removal from Australia if he does not depart voluntarily.   However, given the circumstances that I have just described as set out above I do not consider this to be manifestly unfair and therefore do not give this consideration any significant weight in favour of the visa not being cancelled.

33. As to 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.  The tribunal notes that this factor is not applicable to this particular case and so does not take into account. 

34. As above, it is clear that the breach and the continuation of the breach for a period in excess of 12 months, does not reveal any bad faith on the part of the applicant.  However, it is clear that the significant period of time during which the applicant remained in breach of his visa condition was not occasioned by matters reasonably outside of his control.  It is also clear that the considerations I have arrived at on examining all the evidence before me lean towards the visa being cancelled and I so find. 

35. Given the circumstances as a whole the tribunal concludes that the applicant’s visa should be cancelled.

36. The tribunal affirms the decision of the delegate to cancel the applicant’s visa.  This is an oral decision made at 2.54 pm on 21 February 2020.

    DECISION

37. The Tribunal affirms the decision under review.

    Vanessa Plain
    Member