Okoye (Migration)

[2019] AATA 2856

Okoye (Migration) [2019] AATA 2856 (28 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Uchenna Timothy Okoye

CASE NUMBER:  1819617

HOME AFFAIRS REFERENCE(S):           BCC2018/1212476

MEMBER:Dominic Triaca

DATE:28 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 June 2019 at 10:46am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – change in the purpose of remaining in Australia – financially supporting family – length of non-enrolment – 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 27 June 2018 made by a delegate of the Minister for Home Affairs 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 the applicant had not maintained enrolment in a registered course, enlivening the cancellation power under s.116(1). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant provided a copy of the delegate’s decision to the Tribunal.

3. The applicant appeared before the Tribunal on 12 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Daba Kamara, the applicant’s wife.

4. The applicant was represented in relation to the review by his registered migration agent, who filed submissions on behalf of the applicant and appeared at the hearing and made oral submissions.

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.

   Did the applicant comply with Condition 8202?

7. 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)

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. Prior to the cancellation he was sent a Notice of Intention to Consider Cancellation (NOICC) on 8 June 2018 to which he responded on 25 June 2018.

9. The applicant arrived in Australia in 2016 on a Student Visa. He was enrolled at RMIT and had a confirmation of enrolment in Foundation Studies Business Stream commencing on 20 June 2016 ending on 26 May 2017 and Bachelor of Business (International Business) to commence on 17 July 2017 due to end on 30 June 2020.

10. On 27 June 2018, the delegate of the Department made a decision to cancel the applicant’s visa. On 5 July 208, the applicant applied to the Tribunal for a review of the delegate’s decision and provided the Tribunal with a copy of that decision.

11. The Tribunal has read and had regard to documentation provided by the applicant to the Tribunal including the delegate’s decision, submissions prepared by the applicant’s representative in response to the NOICC 25 June 2018, Written Submissions of the applicant’s representative 3 June 2019.

12. On the day of the hearing, the applicant provided the Tribunal with further documentation including a copy of his Certificate of Marriage dated 17 June 2018 and Certificate Marriage registration date 20 June 2018; application for a Partner (subclass 820) visa dated 25 June 2018; Certificate of Australian Citizenship and passport extracts for Daba Kamara, Notice of a Change of Address, and confirmation of attendance at St Peter Institute dated 24 September 2016. The Tribunal has read and had regard to those further documents.

13. The Tribunal accepts the applicant’s evidence that the certificate obtained from St Peter Institute was wrongly dated by the Institute and the correct date of his attendance at that institution was between 10 July 2017 and 24 September 2017. This is logical given that the applicant was enrolled and attending RMIT during 2016.

14. The applicant states that prior to the cancellation of his visa, he married to Ms Kamara on 17 June 2018. He has applied for a Partner (Subclass 820) Visa and that visa application is pending. He confirmed that he lives with Ms. Kamara as a family unit with her young son from a previous relationship and he has taken on the role of supporting them both. Ms Kamara and her son are citizens of Australia and are not subject to any visas and are not parties to this application. Submissions filed on his behalf state she studies. However the applicant and his wife confirmed that she does not, in fact study or work at this time and the Tribunal accepts this evidence.

15. The delegate’s decision stated that the applicant has not been enrolled in any registered course of study since 25 September 2017. In his evidence before the Tribunal, the applicant confirmed this was true and correct. Accordingly, the Tribunal finds that the applicant has not complied with condition 8202(2). As this was a condition which attached to his visa, the applicant has breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).

    Consideration of the discretion to cancel the visa

16. 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’.

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

17. The applicant gave evidence that he came to Australia in order to study a Bachelor of Business. He was enrolled at RMIT and the first year of his study in Australia was uneventful. He states he attended classes and successfully completed his year of Foundation studies in accordance with his initial plans. I asked the applicant for evidence of his academic progress in his Foundation year but he said he was not able to provide any documentation on account of his not being able to pay fees to RMIT at that time.

18. He says when he came to Australia he was sponsored in his study by his Uncle in Nigeria. He says his plans were derailed somewhat by his Uncle suffering a serious back injury leading to his becoming paraplegic in mid-2017. As a consequence, he says he longer received financial support. He says this led to him becoming depressed about his situation, although he says he has never received any formal diagnosis or treatment for depression.

19. He says further that he had expected to receive an offer from RMIT to commence the Bachelor of Business in July 2017 but this offer was not forthcoming. He says he went in personally and spoke to a person at the counter at RMIT who said they would look into the question of his further offer, but he says he never received any further response. I asked if he had any written or email correspondence in relation to following up his enrolment but he did not.

20. He says that at the time he simply became “lost in life” and did not take steps to follow up RMIT. He realised he could not afford the fees due to his lack of financial support. He instead enrolled in an English course at St Peters Institute and he persevered with that for a short period. He ceased enrolment in any registered course on or about 25 September 2017.

21. Written submissions filed on his behalf state, “the applicant was very distressed and did not have psychological strength to investigate seriously with his university questions about his studies and he was just “lost in life” for a while.”

22. It is apparent that the applicant chose to stop studying as his priorities in life changed in 2017. He commenced a relationship with his wife who had a young son and he took on the role of supporting them both. They have since married and he continues in that role.

23. He says he works as a Disability Support Worker on a casual basis earning $28 AUD per hour for no more than 20 hours per week. The representative’s written submissions state, and the applicant confirmed in oral evidence, “In these circumstances the review applicant had to concentrate on earning money for his new family rather than studies. He continued to have intention to start negotiation with RMIT about his study options with them once his psychological situation becomes better and once he is able to provide financially for his wife, her child and on the other hand to have enough time and money to study at RMIT.”

24. He states his future plan is to return to study and commence a Bachelor of Business Administration. He has done some research into this course and intends to apply at Victoria University however his plans do not appear to be fully developed in this regard. He does not have a letter of offer for a future course.

25. The Tribunal accepts his intention in coming to Australia was to study and gives some weight to him in his favour. The Tribunal accepts he may intend to study in the future. However, the Tribunal considers that the objective evidence is that his purpose in remaining in Australia evolved from study to work at some stage in about 2017 in order to meet his stated intention of financially supporting his family and this explains his lack of academic progress.  Accordingly this weighs significantly in favour of cancellation of the visa.

    The extent of compliance with visa conditions.

26. The applicant’s evidence was that he was not enrolled in any registered course between 25 September 2017 and 27 June 2018, a period of approximately 9 months. The Tribunal considers this was a substantial period of time and the applicant did not comply with condition 8202(2) for a substantial period of time. The non-compliance with a condition for a substantial period of time weighs towards cancelling the visa. In his oral evidence he stated that he was aware that maintaining enrolment was a condition of his visa and that he was not enrolled.

27. The tribunal has considered the applicant’s evidence with regard to his period of non-enrolment. Those reasons set out at paragraphs 18 – 22 above include losing his financial support, depression and a focus on work on account of the need to support his family. The Tribunal does not consider these reasons compelling or convincing reasons as to why he was not enrolled in a course of study. Furthermore, there is little evidence as to how the applicant has spent his time during the breach noting his evidence that he is only able to work on a casual basis for a maximum of 20 hours per week.

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

28. The Tribunal asked the applicant if he or other members of his family would suffer hardship if his visa was cancelled. The practical reality is that whether or not his visa is cancelled he has an application for a Partner visa pending and states he will remain on shore whilst that visa is processed irrespective of the outcome of this application. His representative indicated this may be some time. When asked directly about any hardship associated with the cancellation of this visa, he simply stated that he hoped to undertake further study and he would be “sad” if he could not do so. He considered the fact that he was sad would naturally affect his wife. The Tribunal accepts that cancellation of the visa may cause some emotional hardship and this gives some weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

29. The applicant gave evidence and the applicant’s representative filed submissions addressing the circumstances that lead to the cancellation of the visa and these are set out above. The circumstances were discussed throughout the hearing. I have taken into account the evidence given by the applicant at the hearing and the submissions made on his behalf.

30. I have carefully considered the circumstances of the applicant. I accept the applicant’s evidence that his uncle had been financially supporting him and that due to an injury he was unable to work and consequently unable to offer him further support. It is difficult to take into account the applicant’s stated depression where there is no medical evidence of any diagnosis or treatment. In any event, I do not consider these matters fully explain the applicant’s behaviour. The applicant ceased attending classes and was not enrolled in any form of registered study since September 2017. I consider that the evidence supports the conclusion that the applicant’s purpose in being in Australia ceased to be studying and instead became financially supporting his family.

31. The central purpose of the student visa is to study and for a substantial period of 9 months the applicant was not enrolled, he was not studying. Whilst the Tribunal has had regard to the applicant’s claims that he wishes to engage in further study, the Tribunal has some difficulties in accepting such evidence in light of his failure to undertake study for an extended period of time. Having regard to the applicant’s explanations as to why he was not enrolled, the Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter very significant weight towards the visa being cancelled.

    past and present behaviour of the visa holder towards the department.

32. There is no evidence before the Tribunal that the applicant has been uncooperative towards the Department. The Tribunal gives this a little weight in his favour.

    Whether there would be consequential cancellation under s.140

33. This matter is not relevant in this application and I give this factor no weight.

    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 the cancellation, or whether there are provisions in the Act which would prevent the person from making a valid visa application without the Minister’s intervention.

34. The applicant’s evidence was that if the visa was cancelled he would legally remain in Australia under a Bridging Visa pending the determination of his application for a Partner Visa. This was confirmed by his representative. He has not made any claims that relate to this consideration. I give this factor no weight.

    If it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia.

35. Not relevant.

    Any other relevant matters.

36. I asked the applicant if there were any other relevant matters. He did not believe so. The applicant’s representative reiterated the submissions and the evidence. The applicant’s wife also stated that she hoped the applicant would be able to return to study.

37. I have carefully considered the evidence of the applicant but I find he has not provided any other relevant matters that go to the visa not being cancelled.

38. I have weighed all the evidence before me. Ultimately, despite accepting that the applicant has been through a difficult period due to his Uncle’s unforeseen injury, and he may have suffered some difficulty as a result, I am not satisfied by the overall evidence before me that this explains the reasons for the breach in this case. Student visas are provided for the purpose of study. On his own evidence, the applicant only studied for the first 15 months of his time in Australia in any capacity. He was then unenrolled for a substantial period. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    D. Triaca
    
    

    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.