IKEBUDU (Migration)

[2019] AATA 2789

IKEBUDU (Migration) [2019] AATA 2789 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MAXWELL IFEANYICHUKWU IKEBUDU

CASE NUMBER:  1710066

HOME AFFAIRS REFERENCE(S):           BCC2017/1143203

MEMBER:Helen Kroger

DATE:2 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 02 April 2019 at 2:52pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary)(Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – unable to pay fees – Nigerian government blocking of capital exiting country – transfer to another course and education provider – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140
Migration Regulations 1994, Schedule 8, condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 May 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 applicant, Mr Ikebudu, a Nigerian national, was granted a visa on 10 October 2013 for the purpose of studying in Australia.

3. On the 30 March 2017, Mr Ikebudu was sent a Notice of Intention to Consider Cancellation (NOICC) of his student visa inviting him to comment on a potential breach of condition 8202 which was imposed on his visa. The applicant provided a statement of explanation to the delegate on 13 April 2017, through his then appointed migration agent.

4. The delegate cancelled the visa on the basis that the applicant has not maintained enrolment in a registered course and the grounds for cancelling the visa outweighed the grounds for not cancelling the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments. He provided a copy of the delegate’s decision record to the Tribunal for its consideration.

6. 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

7. 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.

   Did the applicant comply with Condition 8202?

8. 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was invited to respond to the NOICC on the 30 March 2017 and the applicant provided a written response through his migration agent, to the Department, on the 13 April 2017. At the hearing, the alleged breach (as discussed by the delegate in his/her decision), was put to the applicant and reference was made to the delegate’s decision record that he did not study during the period 12 July 2015 and 16 March 2016, a period of eight months and that whilst he was enrolled to commence a Bachelor of Business in March 2016, he did not proceed due to financial difficulties he was experiencing at the time and was unable to pay the tuition fees. The applicant at hearing claimed that he was enrolled during the initial period from 12 July 2015 – 16 March 2016, notwithstanding the Provider Registration and International Student Management System (PRISMS) referenced in the delegate’s decision, indicating that the applicant was not enrolled. The applicant did not dispute that he did not continue his enrolment in 2016 due to financial difficulties, explaining that he did not have the money to pay his course fees. The applicant was provided an extension of time to provide any documentary evidence to support his claim. No further or subsequent submissions were received by the Tribunal to support the claim that the applicant was enrolled during this 8 month period and there is no further evidence before the Tribunal to indicate that the PRISM records, as referenced in the delegate’s decision record is not an accurate record of the applicant’s enrolment details.

10. On the evidence before the Tribunal, namely the applicant’s admission at hearing, the explanatory statement sent to the Department on the 13 April 2017, the Tribunal finds that 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

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

12. 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 ‘General visa cancellation powers’.

13. The Tribunal has considered the applicant’s evidence provided at the hearing along with the written documentation provided to the Tribunal, the applicant’s written statements to the Tribunal dated 21 March 2019 and the 12 February 2018 including the supporting documents attached to his statement date 21 March 2019.

14. The information provided to the Tribunal at the hearing, long with the evidence indicated above, has been considered by the tribunal in its exercise of discretion as outlined below.

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

15. The applicant is 29 years and 8 months of age, a Nigerian national who travelled to Australia in October 2013 for the purpose of studying and was enrolled in a Diploma of Commerce and a Bachelor of Laws. He successfully completed his Diploma in Commerce in June 2015 and according to PRISMS, as referenced in the delegate’s decision, was enrolled in a Bachelor of Business/Commerce that commenced in March 2016, with the COE cancelled on 12 August 2016. The applicant at hearing was invited to comment on his enrolment details whilst in Australia and whilst he claims that he was enrolled in a registered course after the completion of his Diploma in Commerce, there is no evidence before the Tribunal to support this claim.

16. The applicant commenced his studies in March 2016 at Kaplan Business School, having transferred from Deakin College. The applicant claimed at hearing that he spent the 8 months “preparing himself” for his studies, and was unable to explain to the Tribunal what he meant by that, and claimed that he was unable to enrol in a course prior to March 2016 after completing his Diploma in June 2015. He explained that he advised Deakin College of his transfer, and confirmed that he did not advise the Department of his changed circumstances.

17. The Tribunal sought clarity on the circumstances in relation to his enrolment at Kaplan, the timing of this transfer and enrolment and his activities during this time. The applicant was unable to provide any evidence to support his claim that he was enrolled during this time, was not able to provide any clarity with regard to his enrolment details since his time in Australia and was initially unable to advise the Tribunal the name of the education provider where he enrolled in 2017, shortly after the receipt of the NOICC.

18. The Tribunal recognises that the applicant completed a Diploma in Business at Deakin College in June 2015, over a three year period, and has commenced a Bachelor degree at Holmes Institute in 2017, notwithstanding his changed visa circumstances, completing a number of subjects. The Tribunal has considered his claims that “so much has happened” when asked about his enrolment details and the inconsistent evidence provided, his inability to provide the name of his current education provider and his claim that he was poorly advised by his previously appointed migration agent, and that he did not know what information was needed for presentation at hearing. The Tribunal does not consider it unreasonable to expect the applicant to provide an accurate account of his enrolment details and provided the applicant the opportunity to submit supporting documents after the hearing. The applicant provided enrolment details, including his enrolment at Kaplan Business School.

19. In the applicant’s explanatory statement to the Department and his oral evidence at hearing, he explained the financial difficulties he encountered in 2016 when the Nigerian Government blocked the transfer of money out of the country to address domestic economic issues.  He explained that his father, who was paying for his course fees, was unable to transfer money to him in Australia.  A brother based in the United States, assisted with the course fees, payable in March 2016, but was unable to assist for the second semester course fees.  As a result, his COE was cancelled. Whilst he explained at hearing that he sought an extension of time from the Kaplan Business School to pay his fees, a request that was denied, in his explanatory statement to the Department he indicated that he was granted permission but advised he could not enrol in the course until the tuition was paid in full.

20. The Tribunal has given careful consideration of the evidence before it and recognises that the applicant commenced his studies upon his arrival in Australia and completed  a Diploma in Business. However it considers a non-enrolment period of 8 months from July 2015 to March 2016 a significant period of time in the context of a student’s study period. Accordingly the Tribunal gives this factor some weight in favour of cancelling the visa.

    Circumstances in which the ground for cancellation arose

21. The applicant was initially enrolled in a Diploma of Business and Bachelor of Laws at Deakin College/University. He submitted at hearing that whilst studying for his Diploma, he decided not to pursue law and wished to continue with a Bachelor degree in Business or Commerce.  He explained that he was not able to transfer into a business course at Deakin and secured enrolment with another education provider, the Kaplan Business School. Whilst PRISM records indicate that he was not enrolled until March 2016, the applicant claimed at hearing that he was enrolled in 2016 but could not provide any supporting documentation and was given an opportunity to submit this after the hearing.  No further submission has been received by the Tribunal in this regard for the Tribunal’s consideration. The Tribunal has carefully considered this inconsistent evidence and does not find the applicant’s claim of being enrolled plausible, given the PRISM records.

22. The applicant commenced a Bachelor in Business at Kaplan Business School, and explained to the Tribunal the financial difficulties he faced that year, with the Nigerian Government’s approach in stopping any capital from leaving the country.  His father was unable to transfer any money to him to pay for his tuition and his brother, then based in the United States, assisted with the payment of his first semester tuition.  The foreign currency issues continued through the year and his brother was unable to assist with the payment of fees for his second semester. The applicant’s enrolment was cancelled following the non- payment of tuition fees.

23. In the applicant’s explanatory statement to the Department, he claims that he attempted to enrol with another education provider, working on a casual basis to help support himself financially but that he could not earn sufficient funds to cover the payment of a course.  During this time he explained that he became depressed due to the circumstances that he felt was beyond his control. At hearing, he submitted that he did not consider returning home until the financial situation was rectified, as he would have put any money toward tuition fees, if available, rather than the cost of a return flight home to Nigeria.  The foreign currency issues were resolved in early 2017 when he submitted that he enrolled in a Bachelor course at Holmes Institute. At the time of the decision, the applicant was enrolled in a Bachelor of Business. The Tribunal has considered the evidence submitted in relation to the financial circumstances that he found himself in and is not unsympathetic with the difficulties he found himself in, following the Nigerian Government’s restriction on the transfer of monies out of the country. The applicant confirmed at hearing his understanding of the conditions attached to his student visa, his inability to comply with those conditions because of the financial circumstances and gave evidence to indicate that he did not consider returning home whilst the situation was settled nor did he seek to advise the Department of his changed circumstances.

24. The Tribunal has considered the evidence summarised above and is sympathetic with the financial difficulties that were outside the applicant’s control in late 2016 and recognises that these circumstances would cause some distress and upset that the applicant characterises as depression. There is no indication before the Tribunal that this was a professional medical diagnosis. However the Tribunal finds that these events did not occur until 2016 and accordingly do not relate to the period from July 2015 to March 2016 when the applicant was not enrolled for a period of 8 months.

25. After careful consideration, the Tribunal has considered the circumstances in which the grounds for cancellation arose, and gives more weight in favour of the visa being cancelled then any weight given in favour of the applicant.

    The extent of compliance with visa conditions

26. There is nothing before the Tribunal to indicate that the applicant has breached other conditions of the visa. The Tribunal expects that a visa holder will generally adhere to the conditions on their visa and the Tribunal is mindful of the significance of the breach.  As such, the Tribunal gives minimal weight to the fact that there appears to be no additional breaches.

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

27. The applicant was invited to comment on the impact of a possible visa cancellation requiring him to return to Nigeria. He explained at hearing that he completed a Foundation course in Business in London after completing his secondary schooling, graduating with an International Foundation Certificate in Business and Humanities, after a period of 3 years in 2011. He commenced a Bachelor of Laws at Hertfordshire University for 4-5 months, but was unable to continue as he hadn’t extended his student visa within the necessary timeframe, as set out in the Migration Regulations in the United Kingdom, and returned home to Nigeria till 2013. Having decided to continue his studies, he applied to Australia, following positive recommendations and advise.

28. The applicant explained at hearing that he wished to continue his studies so that he could return and work in his father’s business, a company with diverse interests in China, Nigeria and Brazil. He also indicated that his father was a politician and that he shared an interest in that as a career. He indicated that an Australian education was more highly regarded than a local education and that his intention was to return to Nigeria to work with his father.  He claimed that it would be possible to pursue a political career given his father’s current role as a politician. The applicant indicated that as a politician, his father could provide positive assistance in helping him with his employment endeavours and the Tribunal is satisfied that the applicant holds a long term interest in joining his father’s company, with the possibility of entering politics.

29. The applicant confirmed at hearing that his father was aware of his visa circumstances, that he had discussed the situation with him, and indicated that he was in receipt of positive support and encouragement, whilst the visa appeal application was underway. There is no evidence before the Tribunal to indicate that this support would not continue should the visa be cancelled. The applicant continues to be financially supported by his family and there is no indication that this would change and that the applicant’s father would not support him should he return to Nigeria.

30. It is reasonable to expect that the applicant would be disappointed should he return home without a higher education degree, but finds that there are other opportunities that the applicant could consider and pursue, having completed a Diploma in Business. There is no evidence before the Tribunal to indicate that a return would impose financial or economic hardship upon the applicant and that he would receive the same level of support from his family, that would include employment opportunities.

31. The Tribunal has carefully considered the family support available to the applicant and the extent of the opportunities that are potentially available to the applicant whilst recognising that it is not unreasonable to expect some disappointment may be caused. The Tribunal acknowledges the disappointment that the applicant may experience should he return home without completing a qualification, but  does not consider disappointment to be unusual or exceptional upon the cancellation of a visa. The Tribunal finds on the overall evidence that the applicant has not demonstrated any significant hardships in general and would not be subject to any financial or other hardships. The Tribunal gives this little weight towards the visa not being cancelled.

    Past and present behaviour of the visa holder towards the department

32. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department or the Tribunal in his dealings. The Tribunal gives this a little weight in the applicant’s favour.

    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

33. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia and may have to depart and would be provided with a time limited period in which he can leave the country or apply for a review of the decision. The Tribunal accepts that the applicant may be barred from re-entering Australia while holding a valid visa for three years. This is not unusual or atypical hen visas are cancelled. Accordingly the Tribunal only gives this a little weight towards the visa not being cancelled.

    Whether any international obligations would be reached as a result of a cancellation

34. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

35. There is no evidence before the Tribunal to indicate that there are persons in Australia whose visas would, or may, be cancelled under s140.

36. The Tribunal has considered all factors and the evidence before it both individually and cumulatively in the context of the breach. The Tribunal finds that a breach of eight months is significant in the context of a student’s study period and the fact that he would be aware of the 8202 condition associated with the TU-573 visa

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

   DECISION

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

   Helen Kroger
   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.