Igwilo (Migration)

[2019] AATA 5649

Igwilo (Migration) [2019] AATA 5649 (21 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chibuike Kingsley Igwilo

CASE NUMBER:  1731523

HOME AFFAIRS REFERENCE(S):          BCC2017/3611302

MEMBER:Mark O'Loughlin

DATE:21 August 2019

PLACE OF DECISION:  Adelaide

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 21 August 2019 at 2:46pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – Bachelor of Mechanical Engineering – not enrolled in registered course for eight months – circumstances outside of applicant’s control – injured in car accident – unexpected fatherhood – medical evidence provided – financial difficulties – economic hardship – decision under review set aside

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 5 December 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 on the basis that at the time of her decision, the applicant should have been but had not been enrolled in a registered course since 18 April 2017. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 July 2019to give evidence and present arguments. The Tribunal also received oral evidence from the Reverend Tim Klein.

4. 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. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116 (1) of the Act, the visa may be cancelled.

7. In considering this application the Tribunal has had regard to various documents provided by the applicant being the applicant’s submissions dated 16 November 2017 and enclosures, the decision of the delegate of 5 December 2017, submissions made by the applicant’s representative dated 11 July 2019 and enclosures and further submissions made on 22 July and enclosures.

8. The Tribunal has had regard to movement records and PRISMS records on its file but has not relied on those documents as the applicant has given evidence about the matters contained therein and the Tribunal relies on the applicant’s evidence rather than the documents.

   Did the applicant comply with Condition 8202?

9. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

11. The applicant gave evidence that he had difficulty meeting the fees for his course in part because he suffered injuries in a vehicle accident and was unable to work.  Further he had some difficulty studying because of his injury.  He approached the University and some arrangements were made to attempt to accommodate the applicant but these proved inadequate.

12. The applicant acknowledged that the delegate was probably right to find that the applicant was not enrolled from 18 April 2017.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

15. The applicant gave evidence that he had trouble paying for his course because changes in policy by the Nigerian government prevented his family from transferring funds.  The applicant has provided some evidence (in the form of contemporaneous news reports obtained from the internet) that in August 2016 the Central Bank of Nigeria changed its policy about money transfers “effectively blocking many services used by Nigerians to send money to and from the country”. 

16. The applicant also claimed that he had been restricted in his study by injuries suffered in a car accident.  He gave evidence that he is making a claim for damages and, after the hearing; his representative provided a copy of a report from Dr. Danh D. Tran in relation to his injuries.

17. That report, dated 27 June 2018, notes that the accident was on 3 September 2016.  The applicant suffered a laceration to his right eye, facial injuries, a right shoulder injury, a hand injury, and psychological injuries.

18. The applicant complained of difficulty studying due to pain and problems concentrating.

19. There is nothing in the report to suggest that the applicant’s complaints are not justified.

20. The applicant provided a copy of his son’s birth certificate which shows that the child was born on 10 July 2017.  The applicant said that his relationship with the child’s mother had been “on again off again” but that when the child was about 9 months old (about March 2018) he had moved in and they had been living as a family since then.

21. The applicant further gave evidence that the birth of the child had been the cause of some friction with his family and that this had contributed to the stress that impeded his study but that this had now resolved and he did not expect further difficulty in that regard.

22. The applicant’s evidence was that he is under extra pressure to earn now that he is a father and that, the granting of a student visa will mean that he will not be able to earn much while he is studying but once he has his qualifications in Mechanical Engineering he should be able to command a good wage, be that in Nigeria or in Australia.  He acknowledged that it would be better for him to stay in Australia after he completes his study and that that is now his preference.

23. The Tribunal finds that the applicant came to Australia to study but that starting a family here is a compelling reason to remain.

24. The Tribunal notes that the applicant was in breach of his visa condition for about 8 months which was a reasonably substantial breach.

25. The Tribunal accepts that if the applicant is not given the opportunity to complete his Bachelor of Mechanical Engineering with Honours in Australia, he will suffer a significant restriction on his ability to obtain well regarded qualifications and well paid employment.

26. The Tribunal further accepts that such restrictions will affect not only him but his family including his infant son.

27. The Tribunal accepts that the economic hardship suffered by the young family would be significant.

28. The Tribunal accepts that there were some circumstances outside of the applicant’s control that lead to the ground of cancellation.  These include the apparent restrictions on funds transfer from Nigeria, the applicant’s injuries in a car accident, and the pressures of imminent and unexpected fatherhood.

29. There is no evidence of any behaviour of the applicant visa holder towards the department that would suggest that his visa should be cancelled.

30. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

31. He will need to apply for a bridging visa. He may become liable to detention under section 189 and to removal under section 198 if he does not get a bridging visa or leave voluntarily.

32. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

33. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

34. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

35. The Tribunal has weighed the considerations set out above together and finds that the cancellation of the applicant’s visa arose from a concatenation of events which were beyond his control. 

36. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Mark O'Loughlin
    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.