IHEMEBIGAM (Migration)

[2018] AATA 2958

IHEMEBIGAM (Migration) [2018] AATA 2958 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr UGONNA CHARLES IHEMEBIGAM

CASE NUMBER:  1703078

DIBP REFERENCE(S):  BCC2016/2643305

MEMBER:David Barker

DATE:4 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 04 July 2018 at 10:15am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 – Not a genuine temporary entrant – Currently enrolled in Master of Professional Accounting – Failed to complete ELICOS, nursing and project management courses – No military service commitments in Nigeria – Stable employment and a higher pattern of earnings in Australia – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359AA, 499

Migration Regulations 1994, Schedule 2, Conditions 8202 and 8516, cls 500.211-500.218, 500.212(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 February 2017 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 10 August 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because they were not satisfied that the applicant intends to genuinely stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 17 April 2018 to give evidence and present arguments.

5. The applicant was assisted in relation to the review by their registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Background

7. The applicant is a national of Nigeria and is 29 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application states that at the time of application the applicant provided the Department with a Confirmation of Enrolment (CoE) to undertake an ELICOS course and as well letters of offer for Certificate III in Individual Support and Diploma of Nursing. The delegate had regard to the Provider Registration and International Student Management System (PRISMS) which documented the applicant’s study history in Australia.  This history indicated the applicant’s enrolment in the ELICOS was cancelled due to his non-commencement of studies and that there was no further valid or current CoE before the delegate at the time of their decision in February 2017.

9. The applicant was invited by the Department to comment on their circumstances in relation to the genuine temporary entrant (GTE) criterion and to provide any supporting documentation.  The delegate noted information from the applicant’s response, in conjunction with information provided with his visa application, indicated that he had been working in Australia as an Assistant in Nursing (AIN) for a few years. The delegate noted the applicant’s explanation for not maintaining his course enrolment was that he had been trying to set up his own business in Australia.  The delegate stated the applicant had failed to demonstrate how completing ELICOS and nursing qualifications in Australia would be of more benefit than an equivalent education in his home country, or that further training would improve upon the experience that he already held.  The delegate found the applicant had failed to give strong reasons or evidence to demonstrate his study plan in Australia would assist him to obtain employment or improve his employment prospects in his home country in the future.

10. In relation to his immigration history, the delegate noted the applicant’s previous student visa was subject to condition 8202 (continues studying) and condition 8516 (maintain eligibility), both of which he had failed to comply with due to the gaps in his study history. The delegate further noted the applicant had in June 2016 applied unsuccessfully for a subclass 485 Temporary Graduate visa and that he had not departed from Australia since arriving in this country in May 2014.

11. On 28 March 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 17 April 2018. That invitation among other matters, requested the applicant provide an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

12. On 13 April 2014, the applicant provided the Tribunal with documents, including:

    ·a written submission from his representative;

    ·evidence of past and present academic studies in Australia;

    ·a letter from Dr L. Igbokwue;

    ·a letter from Mr S. Igbokwue.

    The hearing

13. The Tribunal raised with the applicant that the matter before it is whether he meets the requirements of cl.500.212(a). It outlined the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

14. He said he arrived in Australia in May 2014 after researching different countries where he could study.  He said his uncle, who owns an import export business in Nigeria, sponsored him to undertake overseas studies. He said he came to Australia to study an advanced diploma of business course and the plan was for him to then return to his home country to work in businesses owned by relatives.  He said another uncle owns a hospital in Nigeria and that he had also suggested the applicant study nursing in Australia, as this could expand his possible employment options when he returned to Nigeria.

15. As to why there appears to be significant gaps in his study history in Australia, the applicant said he completed the initial business courses but that as he then decided to study nursing, he had to undertake an ELICOS course and that his study in that course was disrupted because the uncle who was sponsoring his studies was, in or around August 2016, kidnapped in Nigeria and as a result he did not receive enough financial support to pay for his course fees.  The applicant said he also couldn’t raise enough funds to enrol in a Master of Professional Accounting course, so instead commenced a less expensive project management course, which he studied until November 2017.  He said he was currently studying a Master of Professional Accounting course. 

16. In relation to his education in Nigeria, the applicant told the Tribunal he finished the equivalent of Year 12 and then undertook part of an accounting degree before he came to Australia.  He said he worked in retail businesses for between four and five years in Nigeria and would earn the equivalent of around $100 per month.

17. As to his plans for future employment in his home country and how his studies in Australia are relevant to these plans, the applicant said that when he returns to Nigeria he will have the option to either work as an accountant in an uncle’s hospital or to pursue higher qualifications in Nigeria and further expand his career opportunities there.

18. The Tribunal invited the applicant to comments on concerns, raised by the delegate, about his employment as an AIN and his endeavours to start his own business in Australia.  In response to this invitation the applicant said a previous migration agent had included that in a statement they provided to the Department that it was only something he had informally discussed with that migration agent.  The applicant said he applied for a subclass 485 visa in June 2016, as he wanted to have a little break form his studies so that he could get more work experience or do some voluntary work and thereby get more knowledge that he could apply when he undertook further professional studies.

19. In relation to his employment history in Australia, the applicant said he has worked as an AIN with the same employer in a nursing home in North Parramatta, NSW since July 2014. As to whether his employment in Australia, in comparison to his potential financial circumstances in his home country, provides him with an incentive to maintain his residency in Australia, the applicant gave evidence his income fluctuates according to what shifts he works.  He said he earns around $500 net per week but can earn more, which is direct deposited into his Westpac Bank account.  He said he also receives financial support at times from his brother and his uncles, who transfer funds into his bank account when he needs them.

20. In relation to his families’ circumstances, the applicant said he has a brother who resides in Newcastle, NSW and works as a registered nurse.  He said one of his uncles resides in Canberra, ACT along with his family.  The applicant said his parents and other members of his extended family system live in Nigeria.  

21. The applicant said he has no military commitments in Nigeria.  He initially said he has no fears to return to Nigeria because of civil or political unrest there, because as a young person he can easily leave the country if needs be. However, when discussing why he had not returned to his home country since arriving in Australia in 2014, the applicant said one of the main reasons was due to the high rate of killing and the state of crisis in Nigeria and that he feared that he would not be allowed to depart Nigeria if he had returned to visit his family.  He said because of the risk of losing his life through visiting loved ones in Nigeria he had instead either visited his uncle in Canberra or spent time with his brother in Newcastle when he felt like having contact with family.  He said he also could not afford to return to Nigeria but that he does plan to go back there to work when he finally completes his studies in Australia.

22. The Tribunal summarised concerns arising from the evidence, including the concern: he may have an economic incentive to maintain his residence in Australia; that there are significant gaps in his study history in Australia between June 2016 and November 2017 and also that his evidence regarding civil unrest in Nigeria contained contradictions and that these cumulative factors provided him an incentive to try and remain in Australia.  In response to an invitation to comment further on these concerns, the applicant said the situation in Nigeria is not stable and that he has to evaluate at relevant times the situation there and that there is a lot of political violence in Nigeria at the current time.

    Particulars of information put to the applicant pursuant to s.359AA of the Act

23. The Tribunal put particulars of information, from a recent check of the PRISMS records to the applicant, pursuant to s.359AA of the Act, after first explaining to him this information would, subject to his comment or response, provide the reason, or part of the reason for affirming the decision under review. The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request. The particulars of the information put to the applicant was that his enrolment in a Diploma of Project Management, which was to run from February 2017 to March 2018 was cancelled due to his notification he had ceased study in this course. The Tribunal explained to the applicant that this information was relevant because it appeared inconsistent with his oral evidence during the hearing that he studied in this course until he commenced a Master of Professional Accounting course in November 2017. The Tribunal explained this information gave rise to concern that the applicant was not providing truthful evidence to the Tribunal and that he had not adequately explained gaps in his study history whilst has been in Australia. The Tribunal told the applicant that if it relies on that information it may find he is using Student visas to maintain his residency in Australia and that if the Tribunal finds he does not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the Student visa.

24. The applicant told the Tribunal he did not want any further time to consider his response and proceeded to explain his CoE for the Diploma of Project Management and a further Advanced Diploma of Project Management were cancelled in March 2018 as a consequence of his enrolment in the Master of Professional Accounting course.

25. Following the hearing, the Tribunal gave the applicant until 1 May 2018, to provide further documentary evidence and submissions for the Tribunal to consider before a decision is made in this matter, including: evidence of his attendance at the current course he is enrolled in; bank records to corroborate his claims about his employment earnings; the kidnapping of his uncle and evidence that his uncle was financially supporting him in the period leading up to June 2016.

26. On 1 May 2018, the Tribunal received further documentary evidence from the applicant, including:

    ·a written submission from the applicant’s representative;

    ·a letter from the Nigerian police service;

    ·a letter from The Australian College of technology, dated 24 August 2017 confirming the applicant’s enrolment in a Diploma of management running from April 2018 to September 2017;

    ·financial remittance receipts;

    ·account statements from the applicant’s Westpac bank account covering the November 2015 to May 2017

27. The written submission from the applicant’s representative stated:

    The visa applicant appeared before the Tribunal on the 17 April 2018. After the hearing, Tribunal member requested for Westpac Bank account from January 2016 to the present and evidence of attendance in the Diploma of Project Management

    WESTPAC ACCOUNT

    The client has contacted his bank for a copy of his statement which shows that there have been deposits into the account however, the bulk of his overseas remittances are done through Western ‘Union, transfers. This is due to the high fees the bank charges for sending money abroad -and thy -likely and high non-bank exchange rates one can get using services like Western Union; Money gram, World first and using other non-bank services. I was baffled why he could not explain this to you when you requested his bank statement. I asked him why he did not tell the Member that most of your money is sent through Western Union. His reply was that he was bit confused moreover, he thought you need his bank statement to check if he has not work more than 20 hours a week during school session.

    ATTENDANCE IN DIPLOMA OF PROJECT MANAGEMENT.

    He enrolled in Diploma of Project Management course and started on February 27 to November 2017. His attendance for this course started from February to November. When you requested for his attendance records, I informed him to contact the College for his records to be sent to the Tribunal. He told me that the College is demanding another semester fees of $1500. I rang the College and asked the Coordinator why he should pay another fees before they can issue him his transcripts and attendance records. He told me that he did not abide by the College policy of withdrawing, a policy he had signed before enrolling into the College. The policy was that if you want to withdraw from the College, you need to give a full semester's notice and fill all the appropriate forms and lodge it with the College else, you will be charged with the ensuing semester's fees.

    According to the College, the student should have informed the student central at the beginning of the semester that he will not enrol next semester, instead, he informed the College at the end of the semester. Moreover, did not fill and lodge with the College all the necessary papers pertaining to his withdrawal. As a result, the College indicated to him that since he did follow the rules, he will have to pay a fee of $1500 being a semester's fees. Unless he pays this money, the College cannot issue him his attendance records or academic transcripts.

    The College told me to send email to the Coordinator in Charge of Overseas students using this email address: [email address supplied] I sent the email but unfortunately, I have not received any response.

    WHAT TO MAKE OUT OF THESE INSTANCES

    I am sometimes baffled that his behaviour, is very hard to comprehend, it could be childish at best and stupidity at worst. He has make things very hard for himself by not explaining things vividly or say things as it is when it need to be said. For instances when you asked for his bank accounts to verify if whether being deposited from his sponsor, he agreed, knowing very well that most of remittances were done using Western Union and Money gram. Nowhere during the hearing did he informed you that he receives money through Western Union and for that matter other sources.

    He shown the same lackadaisical attitude towards his enrolment and withdrawal from the College. Instead of informing the College at the beginning of Semester 2 in July 2017, he informed the College towards the end of Semester in October 2017. Consequently, he needs to pay another $1500 before the College can issue these records to him. He might have made a series of mistakes, but the fact remains that he did maintain school or attended classes Throughout 2017 academic year.

    In the light of the foregoing, we would like you to consider the applicant circumstances, the kidnapping of his sponsor and its impact on him and his ability to maintain his attendance and continuous enrolment to remit this case so that he can get his student visa to enable hm to complete his studies.

    CONSIDERATION OF CLAIMS AND EVIDENCE

28. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine applicant for entry and stay in Australia as a student.

29. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)the applicant’s circumstances; and

    (ii)the applicant’s immigration history; and

    (iii)if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)any other relevant matter; and

    (b)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

    Does the applicant intend genuinely to stay in Australia temporarily?

30. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian visa applications’, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

1. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

2. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

3. The applicant did not provide a convincing reason for why he not undertaken the study he has undertaken in Australia in his home country.  This is because he told the Tribunal that it is difficult to get enrolled in education courses in Nigeria, but elsewhere during the hearing he gave evidence that he was accepted into an accounting degree in his home country.

4. The Tribunal accepts the applicant has family ties in Nigeria but notes he also has a brother, uncle and other relatives residing in Australia with whom he maintains regular contact. For this reason, the Tribunal is not satisfied the strength of the applicant’s familial ties in his home country provide him with a clear incentive to return there in the foreseeable future.

5. The applicant contends he has a plan to return to Nigeria to either work in businesses owned by members of his extended family, or to undertake further study so as to improve his overall future career prospects in his home country.  The Tribunal notes he has provided letters from an uncle in Nigeria in support of this claim. The Tribunal can see nothing unreasonable in this claim, however, it is not apparent why the applicant remained in Australia after completing some initial business courses, rather than returning to Nigeria after his academic progression was disrupted in early 2016, given his confidence about his future employment and career options in Nigeria.

6. In light of this concern, the Tribunal is also concerned about the contradictory evidence the applicant gave about whether he had concerns about returning to Nigeria due to political and civil unrest in his home country.  After considering the applicant’s evidence with regard to this issue, the Tribunal finds the applicant presents with concerns as to potential risks to his safety in his home country, which appear to provide him with an incentive to try and maintain his residency in Australia for reasons other than academic progression in his studies.

7. The Tribunal has concern as to some of the gaps in the applicant’s studies since he arrived in Australia and as to his course choices.  Whilst acknowledging it is reasonable for a person to decide to vary their vocational pathways, it is of concern that the applicant has given evidence he made some course choices on the basis of cost, enrolling in a project management course because it was inexpensive.  He claims this was due to a disruption in the financial support he was receiving from an uncle in Nigeria because that person was kidnapped.  The Tribunal has reviewed the documentary evidence provided by the applicant and the written submissions received in support of this claim. He has provided a letter which he claims was provided by the Nigerian Police Force, which is not dated and does not provide the name of the writer, which states that it was reported by the applicant’s aunt that her husband was kidnapped on 16 September 2016 and subsequently released on 18 September 2016. The Tribunal has some concern as to the authenticity of this letter and has placed only limited weight upon it. The applicant said a ransom was paid, which restricted his uncle’s ability to provide him with financial support. 

8. Taking the kidnapping claim at face value, the Tribunal has reviewed the remittance receipts supporting his claim to have received funds from a variety of people in Nigeria, amounting to $5,314.21 between January 2016 and February 2016 and $31,582.43 between December 2016 and April 2017. The Tribunal acknowledges there is a period between March 2016 and December 2016 in which the applicant has not provided evidence of funds remitted to him from Nigeria, however it is not readily apparent as to why disruption to his uncle’ ability to financially support him in or around the time of the kidnapping in September 2016 would account for a cessation of financial support in march 2016, which the applicant claims resulted in his ceasing studies  around that time because he could not pay required course fees.  The bulk of the funds evidenced by the remittance receipts provided were transferred to the applicant between December 2016 and February 2017, which does not seem to support his claim about an inability to pay costs enrolled in a Master of Professional Accounting course prior to November 2017.

9. The Tribunal has noted the representative’s submissions in relation of the applicant’s inability to get confirmation he attended the Diploma of Project Management course, as he has claimed, during the February 2017 to November 2017 period.  The Tribunal has no reason to doubt the accuracy of the representative’s contention he contacted the relevant education provider, but notwithstanding this, the applicant has not been able to corroborate his claim about his attendance in this course.  He has also not provided a convincing explanation as to why he undertook this course, with the exception of stating he did so because it provided him with a less expensive course option, nor as to why he did not then complete this course.

10. The Tribunal has noted the applicant’s representative’s submission that the applicant had never worked in his home country but has preferred the applicant’s evidence that he worked in retail businesses for between four and five years in Nigeria and would earn the equivalent of around $100 per month. The applicant gave evidence he has had, since July 2014, stable employment in North Parramatta as AIN earning $500 net or more per week and that he also receives financial support at times from his brother and his uncles, who transfer funds into his bank account. The Tribunal has reviewed the bank records provided by the applicant and is satisfied they support this claim, as they show earnings of up to $2,000 per fortnight and non-wage transfers into his account from other sources.

11. The consistency and extent of the applicant’s employment earnings, in conjunction with funds deposited in to his account from other sources gives rise to concerns as to why he could not fund his education costs from his own financial resources, rather than ceasing payment for study in the ELICOS and nursing courses he has previously enrolled in, or why he considered it advisable to enrol in a project management course he subsequently did not complete because it was a less expensive course.  A further concern arising from the applicant’s stable employment pattern in Australia since 2014 is that his earnings in Australia, compared to his previous earnings in his home country appear to provide him with a strong incentive to remain in Australia.

12. The Tribunal considers the applicant’s migration history raises concern as to whether the applicant has endeavoured to maintain his residency in Australia for economic reasons.  In forming this view the Tribunal notes the applicant applied for a subclass 485 visa and endeavoured to establish his own business in Australia.  The Tribunal noted with concern that he gave evidence his motivation to do so was due to his wish to have a break from his studies.

13. In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant is currently enrolled Master of Professional Accounting which finishes in December 2018.  He has previously completed business courses but failed to complete ELICOS, nursing and project management courses he enrolled in. He has family ties in both Nigeria and Australia. He has no military service commitments in Nigeria but does have concerns about civil unrest in that country.  He has stable employment and a higher pattern of earnings in Australia in comparison to his past earnings in Nigeria.

14. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

15. Accordingly, the applicant does not meet cl.500.212(a). It follows that the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

16. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

17. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    David Barker
    Member