Elue (Migration)

[2020] AATA 5972

Elue (Migration) [2020] AATA 5972 (20 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Isaac Adam Elue

CASE NUMBER:  1716307

HOME AFFAIRS REFERENCE(S):          BCC2017/1653838

MEMBER:Penelope Hunter

DATE:20 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 20 November 2020 at 11:03am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant is not currently in Australia– lengthy period of non-enrolment –applicant did not comply with condition 8202–decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 26 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 delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant departed Australia on 28 February 2018 and has not returned.

5. The applicant appeared before the Tribunal by telephone on 28 August 2019, to give evidence and present arguments. The hearing was adjourned in order for the applicant to submit further evidence of his studies in Australia and the applicant again appeared before the Tribunal at a hearing on 11 February 2020.

6. The initial member allocated the application for review was unable to finalise the matter and the application for review was reconstituted on 31 July 2020 to a different member. The applicant was advised that all documents and material that were submitted to the Tribunal would be considered in relation to the review, including any recording of hearing and submissions to the Tribunal or the Department.

7. The applicant was again invited to appear before the Tribunal on 23 September 2020 to give evidence and present arguments. The hearing was again held by telephone.

8. 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

9. 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 application, these include the ground set out in s.116(2)(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 circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(2)(b) if the Minister or the Tribunal is satisfied that the visa holder did not comply with a condition of their visa. In this instance condition 8202 was attached to the applicant’s visa subclass TU573 visa.

11. 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).

12. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course, condition 8202(2).

13. In applying for review with the Tribunal the applicant provided a copy of the letter of notification of the Department dated 26 July 2017, advising that his visa had been cancelled. Although requested, the applicant had not provided a copy of the decision of the delegate under review. Pursuant to the provisions of s. 359AA of the Act, the Tribunal provided the applicant with information contained in the decision record of the delegate. The relevant information was that the Department wrote to the applicant on 5 July 2017 providing a Notice of Intention to Consider Cancellation (NOICC) of the visa and requesting a response from the applicant. The delegate set out at that time the intended reason for cancellation of the visa, which was condition 8202, which was the condition that required the applicant to be enrolled in a registered course. Other important information set out by the delegate was that the applicant’s Provider Registration and International Student Management System (PRISMS) records disclosed that the applicant had not been enrolled in a course of study since 31 August 2016. The delegate subsequently made a decision that the applicant was not enrolled in a course of study between 31 August 2016 and 26 July 2017. The applicant was informed that the reason that the information was important was that it set out the basis for the cancellation of the visa, and if the Tribunal relied upon the information it would, subject to the comments or response of the applicant, form a reason or part of a reason for affirming the decision under review. The applicant elected to respond immediately, and said that he did not dispute the information as transparent facts, he was not enrolled but claimed that the circumstances at the time were beyond his personal control. After a time he was able to remedy the situation but it was already too late.

14. The Tribunal asked the applicant whether he was aware that his student visa was subject to a condition that he maintain enrolment. The applicant confirmed that he was aware, he said that he had read all of the conditions when his visa was granted and that he believed the conditions to be fair.

15. The applicant was asked whether he disputed that he was not enrolled in a course of study between 31 August 2016 and 26 July 2017, and he responded that this was a condition of fact and that he did not dispute it.

16. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in, did not have a Confirmation of Enrolment (CoE), or did not have an offer of enrolment in a registered course or a full-time course of study or training, from 31 August 2016 and 26 July 2017. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

17. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

18. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

19. 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’.

20. The applicant is aged 42 and is a citizen of Nigeria. He arrived in Australia in March 2016 on a Subclass 573 (Student) visa, with the intention, he told the Tribunal, undertaking study in a Masters of Economics at Sydney University, from March 2016 to September 2017. The applicant claimed to have taken steps to ensure that he had sufficient funds prior to his arrival in Australia and had amassed savings and an overdraft facility in excess of $100,000 AUS. He had claimed that not long after his arrival due to the lowering of the international price of crude oil because the Nigerian economy was dependant on the production of oil, from mid-April 2016 his country was facing foreign exchange challenges. Restrictions were put in place on the amount of money from their personal funds that Nigerians outside the country could access via their cards. The applicant still had most of his money in the bank in Nigeria. For a time he attempted to transfer money to a friend in Nigeria who was able to forward him further funds but due to the exchange rate his reserve was being depleted. The applicant said that he had concerns that he would no longer have sufficient funds to sustain him through his studies in Australia. He had paid for his first and second semester of study, at the end of his first semester, the crisis had still not abated. He decided that it was better for him to look for another university in Australia that provided a cheaper course. He wrote to a number of universities such as Macquarie University, Western Sydney University and Wollongong University but their enrolments had already closed for the semester. For these reasons he could not continue his studies.

21. The applicant has provided to the Tribunal and the Department the following documents to support his claims:

    i.Email to the applicant, dated 19 June 2016, from his Nigerian bank informing him of the government’s foreign exchange restrictions.

    ii.Email to the applicant, dated 15 September 2016, from the University of Sydney confirming approval of a full tuition fee refund.

    iii.Email, dated 1 September 2016, from the applicant to the University of Western Sydney enquiring about future enrolment.

    iv.Emails between the applicant and Macquarie University between 7 November 2016 and 28 November 2016, enquiring about future enrolment.

    v.Email chain between the applicant and the University of Sydney, between 20 June 2017 and 5 July 2017 regarding the release of pre-paid course funds.

    vi.Letter of offer from the University of Western Sydney, in a Master of Data Science dated 15 June 2017, and introductory coursebook.

    vii.Copy of telex for the transfer of USD $15,000 to the applicant dated 24 July 2017.

    viii.Confirmation of Enrolment, created on 26 July 2017, at the University of Western Sydney in a Master of Data Science.

    ix.Applicant’s submissions to the Department dated 6 July 2017, 7 July 2017

    x.Email to the applicant from Visa Lawyers Australia regarding conversion of the applicant’s visa dated 19 September 2016.

    xi.Written submissions to the Tribunal received on 3 August 2017,9 August 2019, 6 September 2019 and 10 May 2020.

    xii.Academic transcript from the University of Sydney.

22. The Tribunal raised with the applicant that it had concerns with the length of time he was not enrolled in a course. It was noted that he had already paid completely for his second semester of study at the University of Sydney when he decided to withdraw. He had also made a decision to completely withdraw from study and not seek a deferral while he obtained further enrolment or awaited further developments with the financial situation in Nigeria. It was noted that it was a positive step that the applicant took to cancel his enrolment altogether. The applicant responded that this was not something he felt good about doing but he felt that it was the best reality available to him. He said that there was a possibility that he would complete his first semester and then have insufficient funds to pay for the third semester. Again the Tribunal raised with the applicant the opportunity for deferral of his studies, the applicant said that he wished to finish his studies on time, and if he had to return to Nigeria there would be an issue of further funds for return flights.

23. The Tribunal also discussed with the applicant the information contained in his written submission that two weeks after he had submitted his request for withdrawal from the University of Sydney, the Nigerian government relaxed its restrictions on foreign exchange. Although the applicant claimed to have intended to return to studies, and he had communicated with several universities about further enrolment, it was not until July 2017 that he enrolled in a further course. The applicant said that he was receiving feedback that windows for enrolment in January to March 2017 were not available. The Tribunal questioned whether this was in fact the case in September 2016, and noted that the applicant had not provided any evidence to substantiate this. The applicant said that the next window for enrolment he was looking at was July 2017, and he was also mindful of schools that were in his budget. He was really sorry about the gap in time but it was a difficult period for him, when he could not secure admission for January 2017, he started to apply for July 2017. Then he had a delay in having the tuition fees released from the University of Sydney, it was sent to his bank in Nigeria and then he had to arrange for it to be transferred to the University of Western Sydney.

24. In March 2018, the applicant departed Australia, to attend the funeral of his uncle and renegotiate the student loan with his bank. He had not obtained a bridging visa permitting travel prior to his departure, and was advised by Departmental staff when he departed Australia that he may not be able to return. He was currently working in Nigeria and was still hoping to have a favourable outcome to resume his studies in Australia. At each hearing the Tribunal confirmed that the applicant did not have a further enrolment or offer of enrolment in a course of study. The hearing on 28 August 2019, was adjourned to enable the applicant to explore whether he could obtain enrolment in a course of study. In submissions to the Tribunal dated 5 September 2019, the applicant set out that  he had engaged in discussions with several universities. He did not submit a CoE, but requested that the Tribunal set aside the cancellation decision with effect from when he re-enrols. In submissions dated 10 May 2020, the applicant set out that from his discussions he believed that he required assurance that the review application would be favourably considered by the Tribunal prior to an education provider issuing a CoE. At the hearing on 23 September 2020, the Tribunal asked the applicant about what studies he was contemplating, the applicant provided evidence that he had made enquires with a number of institutions such as the University of Western Sydney or the University of Wollongong. Ideally he wished to complete the Master of Data Science. He said this qualification would give him a spectrum of options, his professional background is in supply chains and with data science he would have further skills to forecast trends

25. The applicant told the Tribunal his visa was originally granted to early 2018. He confirmed that if he had continued with his studies at the University of Western Sydney he would have had to apply for another visa. The applicant was asked by the Tribunal why he could not apply for another visa to study in Australia or elsewhere. He said that he did not know how the process works and he felt that the best option was to have his visa reinstated. He was worried that a wrong or bad decision may affect a further visa application. The applicant conceded that he could have studied in Canada, the United Kingdom or the United States, but there were a lot of factors to consider such as safety, the racial index for the country, and the issue of language and he considered that those factors were still valid today. He had considered doing a masters degree in his home country and he accepted that it would cost a fraction of proposed studies in Australia, however he believed that overseas study would provide him with more leverage to advance to further positions and a global presence. He said he required a global presence because a time would come when he wished to take on a bigger position either within Nigeria or in another country. He believed that having recognised qualifications would give him a better advantage.

26. The applicant did not have any dependants on his visa. He had a partner and he told the Tribunal that the plan had been that he would finish his studies and then get a second job to assist his partner to also undertake overseas study. The applicant said that he felt a lot of pain by the fact that many of his student colleagues in Australia had now graduated. He had already spent approximately $33,000 which was a lot of money on his study in Australia. He claimed that he really needed to complete his studies to complete his dream.

27. The Tribunal informed the applicant that it also had before it a copy of his Provider Registration and International Student Management System records and Departmental movement records. The information contained in those records was considered consistent with the evidence of the applicant and it was not considered that there was anything adverse in those records.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

28. The applicant came to Australia as the holder of a student visa to undertake study in Australia as an international student. The student visa has one central objective which is to enable the applicant to undertake studies in Australia. The applicant was granted the student visa under review in early 2016. He arrived in Australia on 1 March 2016, with the intention of completing a Master of Economics at the University of Sydney and his visa was valid until 31 March 2018. The academic transcript supplied by the applicant documents that he undertook three subjects in his first semester of his Master of Economics and passed one. He withdrew his enrolment in second semester, and on 26 July 2017 obtained enrolment in a Master of Data Science at the University of Western Sydney. The applicant also undertook a further semester of study in the Master of Data Science, but was unable to continue further this course when he departed Australia in February 2018 and was unable to return.

29. The Tribunal accepts that the applicant desires to return to his studies, however period of the visa under review has now expired. The applicant did not complete any of his courses within the period in which it was granted. The applicant is not currently in Australia, so does not have a compelling need to remain. He also has been able to obtain a further enrolment in either the Master of Data Science or any other course. He does not have ongoing obligations or responsibilities in Australia, nor do circumstances arise where he has a compelling need to travel to Australia, such as being currently enrolled in a registered course of study and only having a short period left to complete such a course.

30. The Tribunal gives this discretionary factor little weight in favour of exercising the discretion not to cancel the visa.

    The extent of compliance with visa conditions

31. The applicant was not enrolled in a registered course of study from 31 August 2016 to 26 July 2017, a period of 11 months, he did not comply with condition 8202 of his visa. The Tribunal has considered the applicant’s evidence and claims and accepts that his financial situation did impact considerably on his choices and his anticipated ability to fund his proposed study. However, the Tribunal has difficulty with the extent of the period of non-enrolment, and that a new enrolment was only obtained in July 2017. The Tribunal has reservations as to the accuracy of the claims by the applicant that as at September 2016 he had missed the intake for all institutions for the semesters commencing February/March the following year. It does not accept that he could not have obtained any enrolment at all within a three month period, or that he could not have obtained an enrolment in a higher education prior to July 2017 and the Department issuing a NOICC. The applicant acknowledged he was aware of the conditions of the grant of his visa. It is not accepted that his financial problems explain in totality the significant gap in his enrolment.  

1. Considering the lengthy period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, the Tribunal gives this discretionary factor little weight in favour of exercising the discretion not to cancel the visa.

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

2. The applicant told the Tribunal that in the future, either in Nigeria or overseas, he may have the opportunity to take on a bigger position, and having recognised international qualifications would give him an advantage. He does not have this position yet, and did not identify for the Tribunal any particular employer or business who required this additional skills from him. However, he did tell the Tribunal that prior to coming to Australia in 2016, he had good employment as a manager with Coca Cola. When he returned to Nigeria he was unable to resume this role as it had been filled by someone else. Instead, he obtained alternative employment which he considered less satisfactory. He hoped with his qualifications to improve his employment and be better able to support his mother, and also his partner so that she could also undertake further study. The Tribunal accepts that the applicant had high hopes for his future if he successfully obtained further qualifications. However, the Tribunal notes that the cancellation of the visa does not prevent the applicant from undertaking equivalent masters level study in his home country or another country. Further given the time that has passed since the Departmental decision does not prevent him from applying for a further visa.

3. The Tribunal also accepted that the applicant has also spent, a significant amount, approximately $30,000, on studies in Australia. However, were the applicant to resume his studies again in Australia, the situation is that he has made limited progress with both the courses he commenced and he will have to spend a considerably more than his initial investment to complete either qualification. If he was unable to resume studies at the University of Western Sydney the applicant had also considered enrolling in a different course at other universities such as the University of Wollongong, the University of New South Wales or Deakin University. In these circumstance the applicant is also unlikely to have obtained any benefit from the monies he had expended in his previous studies.

4. The Tribunal accepts the applicant’s evidence that he has been considerably distressed and saddened by the Departmental decision. Ye he was able to continue his studies while awaiting review. Had the applicant remained in Australia and continued his studies in the Master of Data Science in accordance with his enrolment, he could have completed the qualification prior to the first Tribunal hearing. He voluntarily elected to depart Australia prior to exploring with the Department whether visa conditions could be granted enabling him to return. He has no rights of re-entry, the period for which the applicant’s initial visa was granted has passed. The applicant has been unable to obtain a further enrolment in a course of study in Australia. In these circumstances where the applicant would still be in breach of the condition to maintain enrolment and may not otherwise satisfy the criteria for the visa grant, there arguably may be limited utility in exercising the discretion in favour of the applicant.

5. While the Tribunal accepts that a degree of hardship will be caused, that the applicant’s future plans have been disrupted, this does not outweigh the seriousness of the breach in all the circumstances of the matter, and the Tribunal gives this factor little weight in its considerations.

   Circumstances in which the ground for cancellation arose

6. The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as he was not enrolled in a course of study between 31 August 2016 to 26 July 2017. The applicant has submitted this was due to financial hardship. The delegate in the first instance did not consider this a sufficient reason and noted that students were expected, as a condition of the grant of the visa, to have sufficient funds for the duration of their stay. The Tribunal has considered the further evidence of the applicant and accepts that the financial problems were experienced with the economy in Nigeria. The applicant acknowledged that a financial crisis was brewing in Nigeria prior to his arrival in March 2016. It is accepted that problems arising from banking restrictions were not anticipated by the applicant. The Tribunal also accepts because of the applicant continued to hold some of his funds in Nigeria, that these banking restrictions for a time limited his ability to access his funds. To that extent the circumstances in which this breach occurred are in some degree extenuating and due weight must be given to them. Although, the applicant did not seek to defer his enrolment at the University of Sydney, instead the applicant withdrew completely from his course. He actively took action to end his enrolment altogether, in circumstances where he knew that it was a condition of his visa grant.

7. It is also the evidence of the applicant that banking restrictions started to ease in September 2016. At this time he still had funds for a complete semester held with the University of Sydney, approximately $20,000. While the Tribunal accepts the logicality in the applicant’s claims that he was seeking a cheaper course, and although it is accepted that the applicant made enquiries with other institutions proximate to the time that he ceased studying at the University of Sydney, he did not obtain any enrolment until 26 July 2017. This is almost 11 months after he withdrew from study at the University of Sydney. The Tribunal has considerable difficulty with this delay and does not accept that the applicant could not obtain any enrolment during this period. If the applicant had further ongoing financial issues it may have been reasonable for him to depart Australia until he obtained enrolment and his financial situation improved. Instead, he elected to remain onshore for an extended period of time without being enrolled or studying in a registered course.

8. The Tribunal gives this consideration partial weight in the applicant’s favour.

   Past and present behaviour of the visa holder toward the Department

9. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past, and he responded to the NOICC. The Tribunal gives this consideration some weight in the applicant’s favour.

   Whether there would be any consequential cancellations under s.140

10. The applicant is partnered; however his partner is also in Nigeria and was not included in his visa application. He has no dependents. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

    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

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

12. If the visa is cancelled the applicant may be subject to a restriction under s.48 of the Act that he may not be granted a further visa for three years from the date of cancellation. It is noted that this date runs from the date of the delegate’s original decision and the applicant has already served the three year period. He would be able to apply for another student visa. It is accepted that any further application by the applicant would be subject to additional scrutiny, and may have consequence that the applicant would have difficulties in obtaining any further visas in Australia. These are also intended and legitimate consequences of cancellation.

13. The Tribunal gives this consideration neutral weight.

    Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

14. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. The applicant returned voluntarily to Nigeria. Has returned to his family and employment, he did not identify for the Tribunal any fear of harm that would give rise to any international obligations. 

15. The Tribunal gives this consideration n weight.

    Any other relevant matter

16. The applicant’s visa was a temporary visa. There are no other relevant matters raised by the applicant.

17. The Tribunal has considered the applicant’s circumstances individually and cumulatively and overall there are limited aspects that are favourable to the applicant. The Tribunal is satisfied that those limited aspects do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

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

    DECISION

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

    Penelope Hunter
    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.