Enyinnaya (Migration)

[2019] AATA 1919

Enyinnaya (Migration) [2019] AATA 1919 (26 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Okezie Enyinnaya

CASE NUMBER:  1826699

HOME AFFAIRS REFERENCE(S):           BCC2018/954851

MEMBER:Adrienne Millbank

DATE:26 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 March 2019 at 4:15pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – study record – non-attendance – poor academic performance – wife’s pregnancy and illness – motivation or ability to undertake study in Australia – 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 6 September 2018 made by a Delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a 34 year old national of Nigeria. He first arrived in Australia on 5 August 2014 on a Student (Subclass 572) visa. At the time he was enrolled in a Diploma of Information Technology Networking course. He was granted the Subclass 500 (Student) visa on 3 April 2017 on the basis of his enrolment in an Advanced Diploma of Engineering course in the VET sector. This enrolment was cancelled on 30 August 2017.

3. The applicant’s wife and two young daughters, the youngest of whom was born in Australia on 14 April 2017, are in Australia on Temporary Graduate (Subclass 485) visas, due to expire on 1 February 2020.

4. The Delegate cancelled the visa under s.116(1)(b) on the basis that the applicant had not complied with subclause 8202(2)(a) of condition 8202. Based on the applicant’s Provider Registration and International Student Management System (PRISMS) record, the Delegate found that the applicant’s enrolment was cancelled on 30 August 2017 and he had not enrolled in another registered course of study.

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

6. The applicant appeared before the Tribunal on 12 March 2019 to give evidence and present arguments.

7. At the outset of the hearing, adopting the procedures in s.359AA of the Act, the Tribunal advised the applicant that it had information that would be the reason or part of the reason, depending on his comments in response, for affirming the decision under review. The Tribunal advised that this information comprised the PRISMS record of his course enrolments and outcomes, and a note on the Departmental file relating to his PRISMS record. The Tribunal referred the applicant to his PRISMS records, discussed all the entries of the PRISMS record with the applicant, and read out the note. The note, made before the enrolment cancellation, stated that the applicant had not attended classes, had been issued warnings for non-attendance and poor academic performance, and had been counselled, to no effect.

8. The Tribunal advised the applicant that the information was relevant because it suggested that he was not motivated and/or lacked the ability to progress academically through the courses he had enrolled in; that he was not genuinely engaged in his Advanced Diploma of  Engineering course; and that he was using the Student visa program to maintain residence in Australia. The applicant was advised that he could seek an adjournment and consult with his representative before providing a response, responding to questions based on this information, or at any time during the hearing. The applicant sought and was granted two adjournments during the hearing. 

9. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing.

10. 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

11. 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. Relevantly, 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.

    Does the ground for cancellation exist?

12. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 attached to the applicant’s visa. Subclause 8202(2)(a) requires that the visa holder must be enrolled in a full-time registered course of study.

13. At hearing the applicant confirmed that he has not been enrolled in any course of study since 30 August 2017. He confirmed that he understood that it was a condition of his visa that he be enrolled in a relevant registered full-time course of study, and that he was in breach of this condition. The applicant’s PRISMS record shows that his last enrolment was cancelled on 30 August 2017 for the reason of non-commencement of studies.

14. 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 the visa should be cancelled.

    Consideration of discretion

15. There are no matters specified in the Act or Regulations that must be considered in the exercise of the discretion not to cancel the visa. 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’.

16. The applicant’s PRISMS record at the time of decision shows that since his arrival he has enrolled in: English Language Programs for International Students; a Diploma of Information Technology Networking; an Advanced Diploma of Telecommunications Network Engineering; a Certificate IV in Information Technology Networking; an Advanced Diploma of Telecommunications Network Engineering; and the Advanced Diploma of Engineering which had a course start date of 01/08/2016 and an end date of 08/09/2018. It shows that the outcome for most of these courses was ‘Cancelled’, ‘Inactive’, or ‘Expired’, and that his last enrolment was cancelled on 30 August 2017 for the reason of non-commencement of studies.

17. The note on the applicant’s PRISMS record from 2017, recorded in notes on the Departmental file states:

    Student has not attended classes this year. Several warnings have been issued for non-attendance and poor academic performance. Student had been counselled. Still no change in attendance. Not attending or submitting any assessments for course. No fees paid since enrolment.

18. The applicant claimed, through a written submission provided by his representative and in testimony provided at hearing in response to the information put to him under s.359AA, that he was in fact highly motivated and ‘passionate about his studies’ in Australia; that his PRISMS record is not a true reflection of his actual attendance and academic achievements; and that in any event his ‘non-attendance and lack of performance’ only began in November 2016, four months into his wife’s second pregnancy.

19. The applicant provided certificates certifying that he has ‘attended’ the Certificate IV in Information Technology Networking course, the Diploma of Information Technology Networking Course, and the Advanced Diploma of Telecommunications Network Engineering course. He provided a statement of results for his Diploma of Information Technology Networking course, certifying that he achieved the result of ‘Not Competent’ for 11 units, and ‘Competent’ for 4 units. He provided copies of course learning materials, and claimed they proved that he attended some classes, as they were only handed out in class.

20. The applicant claimed his purpose, his only purpose, in staying in Australia was to complete his Advanced Diploma of Engineering and then to obtain a Bachelor of Engineering majoring in robotics. He argued, as noted, that he achieved more success than is apparent from his PRISMS record; that he attended more classes and passed more coursework than his results suggest. The Tribunal accepts that the applicant attended some classes and made some progress towards completing the courses he enrolled in. However, such progress has been insufficient for maintaining enrolment and does not demonstrate that the applicant has the ability to progress through the courses he claims he intends to complete.  

21. The applicant advised the Tribunal that he has a Bachelor Degree in Electrical Engineering from a university in Nigeria. On the basis of his immigration and study history in this country, the Tribunal is not satisfied that the applicant’s stated purpose in remaining, to obtain a Bachelor of Engineering majoring in robotics, is achievable, credible, or important to his and his family’s future in Nigeria. For this reason the Tribunal does not accept that the applicant has a compelling need to remain in this country on a Student visa.

22. The applicant attributed his lack of successful completion of most of his courses to his wife’s pregnancy and illness. A letter was provided from the applicant’s wife’s general practitioner (GP), signed on 28 May 2018, advising that she delivered her second daughter on 16 April 2017; that the pregnancy was complicated by ‘Gestational Diabetes Mellitus, Anxiety and Depression’; that the delivery was complicated; and that she suffered from ‘Post-natal Depression’. The letter advised that the pregnancy was stressful for the applicant who had to look after his family, ‘combining work and care for them’. It further advised that ‘while this was not an excuse for the oversight in renewing his visa’, the stress the applicant was under ‘might have caused him to forget the renewal’.

23. The Tribunal considers that if the applicant had a passionate drive to study in Australia and obtain a degree in engineering majoring in robotics in this country, he would have applied himself more conscientiously to his studies. The Tribunal accepts that the applicant’s first priority was to care for his wife and young children, but does not accept that this explains his lack of success in his course enrolments over four years. No medical evidence was provided, including in the letter from the applicant’s wife’s GP, that the applicant’s wife suffered illness such that the applicant has since late 2016, or at any time, had to provide full-time care for her and the children.

24. The applicant acknowledged at hearing that his wife’s condition has improved. He confirmed that despite this improvement, he has not sought to enrol in any course of study. He said he didn’t know whether or not he had study rights on his Bridging visa. He confirmed that his efforts regarding study in Australia since 2017 have consisted of talking with his previous course provider regarding his enrolment cancellation.

25. The applicant confirmed that he has no work rights on his Bridging visa E, and advised that his wife has not worked at all while on her 485 visa. He claimed that he has supported his family in Australia with funds sent by his family in Nigeria. He argued that in terms of his long-term financial future, if he obtained a Degree in Engineering from an Australian university, more and more highly remunerated employment opportunities would be open to him in his home country. He provided no documentary evidence to support this claim. The Tribunal notes that the applicant’s wife obtained a Masters in Business Information Technology Degree from Latrobe University; that the applicant holds a Bachelor Degree in Electrical Engineering from Nigeria; and that he was employed as a technician before coming to study in Australia.

26. The Tribunal does not accept on the evidence provided that the applicant and his family would suffer a significant degree of financial hardship through the cancellation of the visa. The Tribunal considers, rather, that the applicant’s family’s financial situation and prospects will improve when the applicant and his wife return home and find employment. 

27. Regarding psychological and emotional hardship, the applicant explained to the Tribunal that his father has invested significantly in his future by supporting his study and stay in Australia, and that he would find it psychologically and emotionally wrenching to have to return home to face his father without a university degree. The Tribunal found the applicant credible in his testimony regarding his father’s expectations and his fear of disappointing him. The Tribunal accepts that the applicant, having spent over four years here and obtaining only a Certificate of English, might suffer some psychological and emotional hardship on his return, and gives this some weight in his favour.  

28. As noted, the applicant claimed that he was forced to forego his studies in order to care for his wife and their young children following his wife’s pregnancy and illness. As also noted, inadequate documentary evidence was provided to convince the Tribunal that the applicant has had to be a full-time carer for his wife and children since late 2016, and for this reason has been unable to attend classes or continue with his studies.  The Tribunal asked the applicant at hearing whether, when he was unable to continue his studies, he had filled in a form or sent a letter or email to his course provider, or requested in person, a deferral of his studies on the grounds of his wife’s pregnancy and illness. The applicant confirmed that he had not. The Tribunal asked the applicant whether he had at any time approached the Department regarding his changed circumstances and the potential consequences of his changed circumstances for his visa and stay in Australia. He confirmed that he had not.

29. The Tribunal accepts that the applicant was under some stress at the time of his wife’s pregnancy and illness, but is not satisfied on the evidence provided that the circumstances of his visa cancellation were beyond his control.

30. The applicant’s wife and children are in Australia on temporary graduate 485 visas due to expire in February 2020. There would be no consequential cancellations. As noted the applicant testified at hearing that he and his wife plan to return to their home country, with their young daughters, on completion of his studies. For this reason, the Tribunal does not find that there would be hardship caused to the applicant’s wife and children through the cancellation.

31. The applicant confirmed at hearing that has no fear of political persecution under any of the grounds in the 1951 United Nations Convention Relating to the Status of Refugees, and that he has no reason to fear or not want to Nigeria other than the fear of disappointing his father. The applicant has not claimed and there is no information before the Tribunal to indicate that it would not be in the best interests of the applicant’s children to return to Nigeria with their parents.

32. The cancellation could result in the applicant becoming an unlawful non-citizen under s.189, liable for detention under s.189 and removal from Australia under s.198 of the Act, if he does not voluntarily leave Australia or lodge a further visa application. There is however no information before the Tribunal to suggest that the applicant would not apply for and be granted another Bridging visa E to enable him to remain lawfully in the country while organising his and his family’s return to Nigeria.

33. The applicant would be subject to s.48 of the Act, and have limited options to apply for further visas in Australia. At hearing the applicant confirmed that he has no intention of applying for a further visa, apart from another Student visa. The applicant would also be subject to Public Interest Criterion 4013, which could prevent him from satisfying the Schedule 2 criteria for another visa within three years from the date of cancellation of the visa. The Tribunal is not satisfied, for the reasons discussed above, that the applicant is a genuine student whose future prospects would be significantly enhanced through further study in Australia. Further, the Tribunal finds the imposition of such an administrative sanction to be not unreasonable in the circumstances of this case.

34. The Tribunal accepts that there could be some hardship for the applicant in returning to Nigeria without the qualifications he came to Australia to obtain. The Tribunal however finds the applicant’s lack of motivation or ability to successfully complete courses of study in Australia outweighs any hardship he may face because of the cancellation of his visa.

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

    DECISION

36. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    Adrienne Millbank
    Member