Olatunji (Migration)

[2019] AATA 3027

Olatunji (Migration) [2019] AATA 3027 (6 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akinyosoye Dada Olatunji

CASE NUMBER:  1700420

HOME AFFAIRS REFERENCE(S):          BCC2016/3823654

MEMBER:Mr S Norman

DATE:6 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 March 2019 at 4:28pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course – applicant ceased courses – enhancing employment capacity in Nigeria – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

COT15 v MIBP (No. 1) [2015] FCAFC           

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 January 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The Department delegate’s decision was lodged with the Tribunal.

3. The delegate cancelled the visa on the basis that the applicant was determined to have beached condition 8202(2) – enrolment. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. 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 affirmed.

   Real chance to put evidence and submissions

6. In the Nigerian citizen applicant’s response to the Tribunal hearing invitation, he expressly did not request an interpreter to be present at the hearing. Be that as it may, the Tribunal understands that a principal responsibility (including at hearing) is to ensure that an applicant is given a real opportunity to put evidence and submissions in support of their case. During the course of the hearing, conducted in the presence of his migration agent, the applicant appeared to be able to provide meaningful responses to material questions put to him for comment. The Tribunal did find his accent difficult to understand on occasion, however, after asking him to repeat the information he was presenting, the Tribunal is satisfied it was able to materially understand what was being said. Therefore, the Tribunal is satisfied the applicant was given a real opportunity to put his evidence and submissions.

   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 that he was not enrolled in a registered course.

10. The applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 1 April 2015. That visa was due to expire on 15 March 2017. However, by Notice of Intention to Consider Cancellation (NOICC) of that visa dated 7 December 2016, the applicant was advised that information in the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 9 March 2016. It therefore appeared he had breached condition 8202(2)(a); and that his visa may be cancelled pursuant to s.116(1)(b) of the Act.

11. The applicant had responded to the NOICC but did not accept there were grounds to cancel his Student visa. At hearing, the Tribunal put to the applicant that subject to his comments the following may be the reason or part of the reason for affirming the decision under review. The Tribunal advised the applicant, who attended the hearing with his migration agent, he could seek further time to respond (though no request was made). The Tribunal then said that enquiries it had made with PRISMS, corroborated the above information that he had not been enrolled in an appropriate course of study (an advanced diploma) since 9 March 2016 (though he subsequently enrolled in the Advanced Diploma of Leadership and Management course, commencing 22 January 2019[1] - discussed below).

    [1] Tribunal – folio 49.

12. The Tribunal notes inter alia, an applicant will be eligible for a Vocational Education and Training Student (Subclass 572) visa when they are enrolled in a principal course of study for the award of an Advanced Diploma in the vocational education and training sector. However, the present applicant had not been enrolled in an Advanced Diploma course for around nine months at the time the NOICC was issued. The Tribunal advised the applicant this may satisfy it that grounds existed to affirm the cancellation of his Student visa. In reply, the applicant referred to matters which were relevant to whether the Tribunal should exercise its discretion to cancel the visa (discussed below).  However, after considering the evidence before it, the Tribunal is satisfied the applicant was not enrolled in an appropriate course for some nine months at the time the NOICC was issued.

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)(a).  

    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. Regarding the purpose of the (now 44 year old, Nigerian citizen) applicant’s travel to and stay in Australia, he said he wished to study a Diploma of Ministry and an Advanced Diploma of Ministry. The evidence before the Tribunal included that in Australia, the applicant had completed a Certificate IV in Ministry around December 2014, and a Diploma of Ministry in December 2015.[2] He then commenced an Advanced Diploma of Ministry on 27 January 2016, but as noted above, cancellation of that enrolment took place on 9 March 2016.

    [2] Tribunal – folio 50.

16. At hearing and when asked why he ceased his Advanced Diploma course at that time, the Tribunal understands he said he wanted to undertake courses in health work as he believed this would enhance his capacity to seek better work in Nigeria (and that health work coupled with Ministry work may assist the applicant). The Tribunal said it may be plausible the applicant was seeking to (words to the effect) improve his chances of finding better work in Nigeria, but it may not accept it plausible he would have done this by breaching the conditions attached to his Student visa (when put to him at hearing, the applicant did not dispute he understood the conditions attached to his Student visa).

17. The applicant then said his ‘school trainer’ said the applicant should ‘take a break’ from his Advanced Diploma, and return to his Ministry studies at a later time. The Tribunal was also asked to consider the 44 year old applicant’s future. However, and notwithstanding the school trainer’s claimed advice or submissions about the applicant’s future, the applicant had then not enrolled in an Advanced Diploma course for around three years (Advanced Diploma of Leadership and Management – course start date 22 January 2019 – being some five weeks prior to the Tribunal hearing). At hearing, the applicant said he felt this Advanced Diploma course would ensure he was well placed to secure better work in Nigeria. However, his failure to maintain enrolment has not satisfied the Tribunal that claims about his school trainer or future, should prevent the Tribunal from exercising the discretion to cancel the visa in this case.

18. Next, in his response to the Department, the applicant had stated:

    ·     there was an administrative defect and/or a misunderstanding in the process of his enrolment. The agent said they had advised the applicant to arrange for his Certificate of Enrolment to be issued without delay – though at hearing, the Tribunal understood the applicant was in part referring to being told to ‘take a break’ from his Advanced Diploma studies in March 2016

    ·     The applicant then enrolled with TAFE Western Sydney Institute Nepean College, Great Western Highway, Kingswood, NSW 2747 - for a Certificate IV in Ageing Support which class commenced on 1 February 2016 and ended on 30 June 2016 – though as noted below, he did not successfully complete this course.

19. The applicant also said in writing, that he “followed this up” with another enrolment in a Certificate III in Individual Support (Ageing) course; which course commenced 22 July 2016 and ended on 2 December 2016 (at hearing, he said he successfully completed this course and the Tribunal accepts this is correct). The applicant also lodged a ‘Confidentiality Agreement’ from Hedwig Village dated 30 September 2016, at which location the applicant had temporarily undertaken a two week placement,[3] for this course.

    [3] Tribunal – folio 40.

20. The applicant then said that in order to ‘maintain his student visa status he commenced enrolment in a Certificate III Health Service Assistance course (commencing mid-2017) which he was to ‘confirm through payment’ (at hearing, he explained he completed this course in mid-2018 but was not awarded the Certificate for non-payment of fees – discussed below).

21. By migration agent submissions dated 26 February 2019,[4] the following was lodged:

    ·     a medical certificate from Nigeria dated August 2015,[5] indicating a named male person had passed away – at hearing, the applicant confirmed this was his maternal uncle

    ·     a letter dated 8 December 2016 from NSW TAFE, relating to enrolment in a Certificate IV in Ageing Support – ‘offering period – 8/02/2016 to 17/06/2016[6]

    ·     a letter dated 19 July 2017 from NSW TAFE, relating to enrolment in a ‘Certificate III in Health Service Assistance qualification’[7] (the applicant was not awarded the Certificate for non-payment of fees)

    [4] Tribunal – from folio 46.

    [5] Tribunal – folio 43.

    [6] Tribunal – folio 44.

    [7] Tribunal – folio 41.

22. The applicant then said (in writing) that he was not able to ‘commence the course of his next dream immediately due to issue of his course cancellation’.[8] The agent also lodged:

    ·     an email dated 14 February 2018 relating to ‘Students coming for placement Feb 19- Mar 2, 2018’[9] – though the applicant completed his Certificate III course in mid-2018, he was not awarded this Certificate for non-payment of fees – and at hearing, he did not claim to have undertaken any other studies in 2018

    ·     a COE for Advanced Diploma of Leadership and Management at Sicop Education & Technology P/L – course start date 22 January 2019 / end date 21 January 2020[10]

    [8] Tribunal – folio 40.

    [9] Tribunal – folio 42.

    [10] Tribunal – folio 45.

23. In writing, the applicant had also referred to ‘the time of his enrolment for the course at February 2017’.[11] However, after discussing his evidence at hearing, the Tribunal understands the only course the applicant studied in 2017, was the aforementioned Certificate III course, which finished in mid-2018, and which the applicant had not been awarded due to non-payment of fees.

    [11] Tribunal – folio 40.

24. At hearing, when then asked what he had studied after ceasing the Advanced Diploma in Ministry on 9 March 2016, the applicant said he had undertaken the following studies:

    ·     A Certificate IV in Ageing Support – the applicant ceased this course around June 2016; however he conceded that he had not passed this course – and the Tribunal accepts this is correct

    ·     A  Certificate III in Individual Support – the applicant successfully completed this course around December 2016 – and the Tribunal accepts this is correct

    ·     A Certificate III in Health Services Assistance[12] (NSW TAFE) - the applicant said he successfully completed this course but had no evidence of same as the Certificate was withheld as he was not able to pay the tuition fees (said to currently be $3,900) – and the Tribunal also accepts this is correct.

    [12] See Tribunal – folios 20 & 41.

25. Therefore, between 9 March 2016 and the date he commenced his Advanced Diploma of Leadership and Management (22 January 2019), being almost a three year period, the applicant had claimed to have successfully completed one Certificate III course – in December 2016; and a second Certificate III course in June 2018 (though he was not awarded the Certificate as he cannot afford to pay for his tuition fees).

26. Regarding the Advanced Diploma of Leadership and Management, it was said the applicant had paid the ‘Initial Pre-Paid Tuition Fee’ of $1,625, and he would later pay the ‘Total Tuition Fee’ of $6,500.[13]  When then asked about payment for the aforementioned Certificate III course debt ($3,900), the applicant eventually said he had paid some monies and that he ‘hoped’ to repay that debt sometime in the future. He also said he only works casually in Australia (some two or three days per week), that he resides by himself, and that he remits around $120 per month to his wife and children in Nigeria (they reside approximately 90 minutes by bus from Lagos); and at hearing, the Tribunal noted, and the applicant did not dispute, that the cost of living in Nigeria was much less than it was in Australia so this money constituted (words to the effect) a windfall for his family.

    [13] Tribunal – folio 45.

27. That being said, based on the evidence before it, the Tribunal is not satisfied the applicant’s intention for remaining in Australia, is for the purposes of study. He had not been enrolled in an appropriate course of study for almost three years, and I am not satisfied his studies at the Certificate level substantiate his claim to be a genuine student. Further, I do not accept his more recent enrolment in the Advanced Diploma of Leadership and Management course (commencing 19 January 2019), is genuine, in the sense that I do not accept that he has the ongoing financial capacity to continue his studies in Australia. Given all the accepted evidence herein, I also do not accept this more recent enrolment is evidence of a genuine intention to continue to study in Australia. After then considering the accepted evidence, the Tribunal is not satisfied the applicant’s present intention for remaining in Australia, is for the purposes of study.

28. Next, and regarding the extent of compliance with his Student visa, the Tribunal is satisfied the applicant was not enrolled in an appropriate course of study for almost three years. The Tribunal believes this breach to be significant.

29. Regarding the degree of hardship that may be suffered by the applicant, or his family, if his visa is cancelled, in his response to the NOICC he said he wished to continue to study in Australia. In his undated statement,[14] the applicant also said his course work in Australia would be necessary to promote the gospel and engage in rural evangelism when he returned to Nigeria. However, after considering all the circumstances of this case, the Tribunal is not satisfied the applicant’s present purpose for remaining in Australia is to study.

    [14] Tribunal - folio 40 - also see statutory declaration dated 28 February 2019.

30. Next, in his undated statement,[15] the applicant referred to the high rate of unemployment in Nigeria. At hearing the applicant said his wife works full time as an administrative clerk in a University Hospital in Nigeria (though she had not been promoted as had been hoped), and his three children (13, 10 & 6 years of age) all attended school in Nigeria. He also said he had qualified as a Mechanical Engineer in Nigeria, but for the last ten years in Nigeria (prior to his travel to Australia in 2015), he had been employed as a motor mechanic, which he said was equivalent to tradesmen work and not commensurate with his level of education. Though the Tribunal accepts the applicant might be able to earn more money in Australia, and that his family has benefited from same, I am satisfied he could find adequate work in Nigeria, based on his education in Nigeria and Australia, and based on his prior work experience in Nigeria.[16] Be that as it may, the Tribunal does accept that if the applicant’s visa is cancelled he or his family may suffer some limited hardship.

    [15] Tribunal - folio 40.

    [16] As noted at hearing, the country information indicated that ‘economic conditions in Nigeria create push factors for internal and external migration for individuals seeking employment opportunities’, DFAT COUNTRY INFORMATION REPORT NIGERIA, 9 March 2018, at [2.14].

31. Regarding the circumstances giving rise to the grounds for cancellation, the Tribunal notes it has already referred to and discussed some of the claimed reasons the applicant ceased his Advanced Diploma of Ministry on 9 March 2016. However in his undated statement,[17] the applicant also said he had ‘experienced trauma and nostalgia’. He said that a maternal uncle had passed away in Nigeria in or around March 2015.[18] He said the death of his uncle had an ‘adverse effect’ on him. Given the applicant’s Student visa had been cancelled prior to that time and he could not return to Nigeria and then return to Australia, he was not able to pay his uncle his ‘last respects’ and this constituted a ‘heavy blow’.

    [17] Tribunal folio 40.

    [18] Tribunal – folio 43.

32. The Tribunal did not propose to make the applicant’s case, but after discussing the death of the uncle at hearing the applicant did not suggest he had sought any medical or other assistance at that time (including from the College in which he was then studying a Certificate III in Health Services Assistance). In the circumstances, and while the Tribunal accepts the applicant may have been upset by the death of his uncle, I am not satisfied this explains why he failed to maintain enrolment in an appropriate course of study.

33. The applicant also referred to the ‘mental anguish’ he suffered on receipt of the NOICC (dated 7 December 2016). However, and again, he did not seek any medical or other assistance for this and I am not satisfied that prevented him from maintaining enrolment in an appropriate course of study.

34. Next, there is no evidence before the Tribunal that the applicant had been uncooperative with either the Department or the Tribunal.

35. There is no evidence before the Tribunal that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled.

36. There is also no evidence accepted by the Tribunal that would cause it to find the applicant has a compelling need to travel to or remain in Australia.

37. Next, if the applicant’s visa is cancelled, he would become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However, based on the evidence before it, the Tribunal is not satisfied the applicant would be subject to indefinite detention. Further, the Tribunal believes the applicant could retain his Bridging visa (temporarily) in order to remain in the community to finalise his affairs prior to departing Australia.

1. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act and would have limited options to apply for further visas in Australia.  He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation.

2. Regarding whether Australia’s international obligations would or may be breached if the applicant’s visa is cancelled, in his undated statement[19] the applicant said his course work in Australia would be necessary to promote the gospel and engage in rural evangelism when he returned to Nigeria. At hearing, he also referred to (words to the effect) endemic corruption in Nigeria and the unstable political situation.

   [19] Tribunal folio 40 - also see statutory declaration dated 28 February 2019.

3. Be that as it may, the Full Federal Court has previously upheld a Tribunal decision affirming the cancellation of a Subclass 101 (Child) visa in which the Tribunal dealt with claims relating to (possible) non-refoulement obligations by referring to the fact that such claims could be canvassed in an application for an alternate visa (COT15 v MIBP (No. 1) [2015] FCAFC, North, Collier & Flick JJ, 22 December 2015). The Tribunal understands each case needs to be considered according to its merits, however in the present case, I am satisfied that any protection claims may be better canvassed in an alternate visa process.

4. Finally, and amongst other things, the Tribunal accepts the applicant had commenced an Advanced Diploma of Leadership and Management on 22 January 2019 (some five weeks prior to the Tribunal hearing). I also accept he and his family may be ‘better off’ if he was allowed to continue to study and work in Australia. However, given he had not been enrolled in an appropriate course of study since 9 March 2016 (and for almost the next three years), given he had only successfully completed two Certificate III courses since that time (and he was not awarded the Certificate for one of these courses completed in June 2018 for non-payment of fees), and given his apparent inability to materially fund his ongoing studies, the Tribunal is not satisfied the applicant is now a genuine student in Australia.  

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

   DECISION

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

   Mr S Norman
   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.