NWABUEZE-ANISIOBI (Migration)

[2019] AATA 6578

NWABUEZE-ANISIOBI (Migration) [2019] AATA 6578 (3 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr OLISA OSWALD ALEXANDER NWABUEZE-ANISIOBI

CASE NUMBER:  1907641

HOME AFFAIRS REFERENCE(S):          BCC2019/161416

MEMBER:Mark O'Loughlin

DATE:3 December 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 03 December 2019 at 10:52am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a registered course ceased – applicant moved interstate for health reasons – lengthy wait for enrolment renewing English requirements – evidence of enrolments – limited academic progress – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 116
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 21 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached a condition of the visa and the grounds for cancelling the visa outweighed the reasons for not cancelling it. 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 2 December 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

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 addition to the oral testimony of the applicant the Tribunal had regard to submissions made by the applicant’s representative and various attachments, and to the decision of the delegate of the minister dated 21 March 2019, a copy of which was provided to the Tribunal by the applicant’s representative at the hearing.

8. The Tribunal also had regard to PRISMS records relating to the applicant’s study history.

   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)(a).

10. The applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

11. Initially in his evidence the applicant agreed that his enrolment had lapsed at about the time that he moved from Perth to Adelaide, but later in his evidence it appeared that that had been a misunderstanding and he withdrew from that position.  He said that his enrolment had not ceased.

12. He gave evidence that he had come to Australia in October 2016 and that he was enrolled in a diploma of Health Services at Edith Cowan University in Western Australia.  He said that the diploma lead to a Bachelor of Nursing.

13. He said that he had come to Australia to study nursing and that he hoped to return to work as a nurse in his homeland of Nigeria.

14. The applicant said that he had suffered from asthma since childhood but that it was generally well controlled with a Ventolin inhaler which he used about once per day.

15. He said that his asthma worsened and that he was told that there may be allergens in Perth that were aggravating his condition.

16. He said that he decided to move to Adelaide because he checked it and the reported pollen levels appeared to be similar to where he had come from in Nigeria.

17. His evidence was that he moved from Perth to Adelaide on 15 July 2018 when he was ¾ of the way through the course.

18. He said that when he came to Adelaide he intended to enrol in a Bachelor of Nursing at Torrens University, but that his English certificate had lapsed so he had to do an English course before he could accept an offer to enrol in the Bachelor of Nursing.

19. The applicant gave evidence that when he had done the English test he found that he had missed the intake for the Bachelor of Nursing and so, to avoid falling significantly out of enrolment, he enrolled in a Diploma of Leadership and Management leading to an Advanced Diploma of Leadership and Management.

20. He said that there are elements of the course that relate to health administration and that he believes there is some applicability.

21. He said that he does not believe that he had a substantial period of non-enrolment and indeed he still has not as he is continuing to study the Diploma of Leadership and Management.

22. The Tribunal had regard to the delegate’s decision that said that an examination of the applicant’s PRISMS (Provider Registration and International Student Management System) records he had not been enrolled in a registered course of study since 23 May 2018.

23. On that basis the Tribunal put the applicant’s PRISMS records to him on the basis that they contain information that is adverse to the application and, if the Tribunal relies on them, they would be the reason or part of the reason to affirm the delegate’s decision. 

24. It was put to the applicant the PRISMS records are relevant because they say that he was last enrolled in a Diploma of Science (Health Studies) on 21 May 2018 and that, although he has been enrolled in several other courses it did not start studying until 15 August 2019.

25. The Tribunal also advised the applicant that there is no English course in his PRISMS records.

26. The Tribunal told the applicant that the PRISMS records, if the Tribunal relies on them, show that the applicant did not comply with condition 8202 (2).

27. The applicant said that he could not obtain a CoE from Edith Cowan University because he is no longer enrolled but that he insists that his enrolment was current until he came to Adelaide in July 2018. He said that if the PRISMS records show otherwise that they must be wrong.

28. He further said that the PRISMS records should show the English course that he did when he got to Adelaide. He again suggested that if the English course was not shown the records are wrong. He said that he did not have a CoE for the English course because of a problem with his previous agents. He said that the institution where he did the English course refused to provide him with a CoE. The Tribunal does acknowledge that the applicants provided of a certificate showing that he passed an English test on 10 January 2019.

29. The Tribunal accepts that the applicant is enrolled in and is studying a Diploma of Leadership and Management started on 5 August 2019. The applicant does not have any evidence that he was enrolled in the Diploma of Science (Health Studies) after 23 May 2018.

30. The question of his enrolment in that course and in other courses up to the date of the delegate’s decision on 21 March 2019 was a clear issue in the delegate’s decision in the applicant has been unable to provide evidence of relevant enrolments.

31. The Tribunal, having regard to the PRISMS records finds that the applicant was not enrolled in a relevant registered course from 23 May 2018 until 8 April 2019 when he was enrolled to study an Advanced Diploma of Leadership and Management at Trison College although that course did not ultimately proceed.

32. The Tribunal therefore finds that the applicant was not enrolled in a relevant registered course from 23 May 2018 until 21 March 2019.

33. 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

34. 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’.

35. The applicant gave evidence that he arrived in Australia hoping to get Australian qualifications in nursing. He said that he believed that overseas qualifications were well-regarded in his homeland of Nigeria. He said that he believes that a nurse with Australian qualifications can earn substantially more than a nurse with Nigerian qualifications in Nigeria although he was unable to say how much more.

36. On being pressed for an estimate he said he thought that a nurse with Australian qualifications in Nigeria could earn the equivalent of AU$1500 per month.

37. He said that he came to Australia on 12 October 2016 and was enrolled in a Diploma of Health Science at Edith Cowan University. He said that that was a two-year course and that he had done a year and ½ but that the asthma that had troubled him in his childhood was aggravated in Perth and became troublesome. This mirrored submissions that his representative had made in a letter of 25 November 2019.

38. The documents profit in support of the claims of ill health comprised;

    ·a medical certificate from Edith Cowan University medical Centre in relation to a migraine, certificate valid for 31 May and 1 June 2017 which the applicant said was related to his asthma because the asthma cook caused migraines.

    ·A letter from Adelaide City General Practice dated 2 February 2019 relating to chest pains which the applicant said he believed was related to asthma.

    ·A note from the emergency Department of Joondalup health campus dated 24^th of November 2016 recording and attendance by the applicant with an apparently asthma related problem.

39. There was also a referral for a chest scan and some form of cardiac investigation both dated 20^th of February 2019 and neither with any obvious relevance. In particular it’s not clear whether the applicant had the chest x-ray and whether it was considered by a medical practitioner.

40. The applicant gave evidence that the attendance at Joondalup in November 2016, 1 month after he arrived in Australia, was the only medical treatment that he sought specifically in respect of asthma. He believes that certain other medical conditions such as his migraine and occasional chest pains are also related to asthma but he has nothing in terms of corroborative evidence to support that link.

41. The applicant said that he believed that Adelaide had a better climate for asthmatics than Perth. He said that he had checked the pollen count and believed Adelaide to generally be lower than Perth’s. He did not suggest that he had had any medical advice to the effect that he should move from Perth to Adelaide.

42. He also said that he had had a cousin in Adelaide who said that he should make the move.

43. He said that after he moved to Adelaide it started working in aged care which was initially in about January 2019. He says that he works 20 hours per week and is about $750 per week after tax.

44. In relation to the purpose of the visa holders travel to and stay in Australia the Tribunal notes that the applicant has been here for over 3 years with the intention of studying nursing and at this stage has made very little progress. He has enrolled in several Diploma and Bachelor level courses. He gives evidence that he has not completed any courses other than an English course which he cannot prove.

45. He is currently studying a Diploma of Leadership and Management and he says that there is a component of this course that relates to health industries but that he proposes to change his enrolment next year assuming he can get into a Bachelor of Nursing.

46. There’s nothing to suggest that the applicant has a compelling need to travel to or remain in Australia.

47. Although the applicant’s employment provides him with an income about double the income he expects to enjoy in Nigeria, the Tribunal acknowledges that the applicant has commenced that work relatively recently and that these earnings are unlikely to been a motivation for him to travel to Australia 3 years ago.

48. The applicant gave evidence that he intends to return to Nigeria when he has his qualifications and there is no evidence that his superior earning capacity in Australia provides a purpose for his stay here.

49. The applicant did not comply with condition 8202 (2) for 10 months which the Tribunal funds to be a substantial breach.

50. The applicant gave evidence that cancellation of his visa will cause him substantial how hardship. He gave evidence that if he returns having had his visa cancelled he will be ostracised by “the society”. He said that he lives in Port Harcourt which he describes as a working class area they said most people have degrees and that without one it’s very difficult to get work. He said that he will therefore suffer financial hardship if his visa is cancelled.

51. There is no corroborative evidence of this.

52. He also said that he is expected to repay his mother who has been meeting his tuition. He said that she runs a business and is able to afford his fees but she will suffer hardship if he is unable to work and repay her.

53. There is no corroborative evidence of this.

54. The applicant further said that his health would be affected and that he would suffer depression and that the depression would aggravate his asthma. He said he had been told that by his GP. Without corroborative evidence the Tribunal does not accept this assertion.

55. The Tribunal does accept that the applicant will suffer some distress if his visa is cancelled. Such distress is often caused by visa cancellation and must be seen as an ordinary consequence of breach of visa conditions.

56. The Tribunal is not satisfied that the applicant will suffer a substantial degree of partnership if his visa is cancelled.

57. Despite denying that he did breach his visa conditions the applicant asserted, both in evidence and through his representative’s submissions, that he was forced to move from Perth to Adelaide for reasons outside his control namely his health and in particular his asthma.

58. The Tribunal does not accept this assertion. The Tribunal does not accept that the corroborative evidence that the applicant has furnished suggests a challenging medical condition. The Tribunal notes that none of the medical evidence is sufficiently close in time to suggest a condition that would have motivated the applicant to move from Perth to Adelaide in July 2018.

59. The Tribunal observes that some of the evidence offered by the applicant postdates the applicants move from Perth to Adelaide by about 7 months. The applicant gave evidence that the whole of the evidence suggests a trend of deterioration in his asthma. However, the applicant also said that since he has moved to Adelaide his asthma has improved.

60. The applicant does not suggest that he had medical evidence that he should move from Perth to Adelaide. The Tribunal is not satisfied that the ground of cancellation arose in circumstances beyond the applicant’s control.

61. There is nothing in the visa holder’s past and present behaviour towards the Department that suggests that the applicant’s visa should be cancelled.

62. The applicant gave evidence that there would be no consequential cancellations under section 140 if his visa is cancelled.

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

64. 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.

65. 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.

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

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

68. As regards the submissions made by the applicant’s representative on 25 November 2019, the Tribunal does not accept the assertion that the applicant was unable to continue and complete his studies in WA due to health conditions.

69. The Tribunal notes the representative submissions in respect of enrolment in the English course but does not accept that any such enrolment was demonstrated and relies rather on the PRISMS records and finds that the applicant was not enrolled in a relevant registered course from 23 May 2018 to the time of the delegate’s decision on 21 March 2019.

70. The other matters raised by the representative recovered and evidence and accompanied these reasons above.

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

    DECISION

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