Omeh (Migration)

Omeh (Migration) [2020] AATA 6000 (1 December 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nnabuike Johnson Omeh
CASE NUMBER:  2004956
HOME AFFAIRS REFERENCE(S):          BCC2019/5364313
MEMBER:Vanessa Plain
DATE:1 December 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 1 December 2020 at 12:55pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant has not been enrolled in a registered course of study – breached condition 8202 – experiencing depression – no medical evidence to substantiate the allegations –pending partner visa application – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), cl 500.214, Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 March 2020 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).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study. 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 appeared before the Tribunal on 24 July 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202(2)(a) 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?
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 full time registered course: 8202(2)(a)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
An examination of the Delegate’s Decision Record reveals that the applicant was granted a Student (Temporary) (class TU) subclass 572 visa on 18 July 2016 for the purpose of undertaking registered courses of study in Australia. He was subsequently granted a Student (subclass 500) visa on 15 February 2018 which ceased on 13 October 2018. He was granted third student visa on 26 November 2018, however, a series of COEs were cancelled on 9 January 2019 due to unsatisfactory course progress and non commencement of studies. The applicant has not obtained a new enrolment until 14 July 2020 and on that basis, has had a period of non enrolment of approximately 1.5 years.
The Delegate’s Decision Record also notes that the applicant lodged a Combined Partner (subclass 820/801) visa application on 6 January 2020.
A Notice of Intention to Consider Cancellation (NOICC) of the visa was issued to the applicant on 20 February 2020.
The applicant responded to the NOICC in writing on 24 February 2020. In that response, he admitted there were grounds for cancellation and sought to explain the reasons for his period of non-enrolment and provide reasons why the visa should not be cancelled. He stated that he could not attend classes due to his wife being pregnant along with depression and low blood pressure and he was required to take care of her and their unborn child.
At the hearing, the applicant acknowledged that he was not enrolled in registered course from 9 January 2019 and he said further that he applied to enrol two weeks ago in a Certificate IV in Disability.
On the evidence before the Tribunal as set out above, the Tribunal is satisfied that the applicant did not maintain enrolment in a registered course of study from 9 January 2019 and on that basis, he has not complied with condition 8202(2)(a).
Consideration of the discretion to cancel the visa
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’.
In his written response to the NOICC, the applicant gave reasons why his visa ought not be cancelled, as summarized in the Delegate’s decision record as follows:
·He had to drop out of school because he had to work and provide for his family and meet their financial needs because his partner was present and had to stop work due to complications with her pregnancy which lead to financial difficulty.
·His sponsor told him that he could not sponsor him anymore
·The above situation led to depression which he has not recovered form and he did not want his son to grow up without a father.
·He will finish his study once he is in a stable financial position.
In his sworn evidence at the hearing, the applicant provided the following evidence:
·He can’t travel or work on the bridging visa he has which is causing him prejudice as he wants to go to his home country and show his family his wife and child. This is causing him hardship.
·As to the reason for not finishing his course, he said that he wasn’t in the right frame of mind and just wanted to look after his child. He asked his education provider why his COE was cancelled and they told him they couldn’t help, but they asked him to pay off the fees and he informed the college that his wife was pregnant and he couldn’t work, which was causing him stress.
·As to why he didn’t seek a deferment of his course, he said that he thought about deferral, but by the time he went to his school they had already cancelled his COE and it wasn’t possible to fix it.
·In response to the Tribunal’s question as to whether he is currently working, the applicant stated that he was working, approximately 38 hours per week.
·In response to the Tribunal’s question as to whether he conferred with a migration agent, the applicant stated that agent who organised his student visa arranged for his partner visa.
In support of his application, the applicant submitted the following documents:
·Marriage certificate dated 20 February 2019
·Birth certificate for the applicant’s son, dated 3 May 2019
·Medical certificate dated 14 February 2020 (confirming that the applicant stopped studying in October 2018 to look after his pregnant wife).
·Certificate III in Light Vehicle Mechanical Technology; Diploma of Hospitality Management
·National Police Check
·Statement from the applicant’s wife dated 13 July 2020
·Letter of enrolment in Certificate IV in Disability dated 15 July 2020, confirming the applicant is enrolled as at 14 July 2020 at the Apex Training Institute.
·Written submissions of the migration agent.
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
The applicant was granted a Student (Temporary) (class TU) subclass 572 visa on 18 July 2016 for the purpose of undertaking registered courses of study in Australia. He was subsequently granted a Student (subclass 500) visa on 15 February 2018 which ceased on 13 October 2018. He was granted third student visa on 26 November 2018, however, a series of COEs were cancelled on 9 January 2019 due to unsatisfactory course progress and non commencement of studies.
The applicant obtained an enrolment in a Certificate IV in Disability commencing on 14 July 2020. This amounts to a period of non enrolment of 1.5 years. The Delegate’s Decision Record also notes that the applicant lodged a Combined Partner (subclass 820/801) visa application on 6 January 2020.
The Tribunal acknowledges that the applicant has completed some vocational level qualifications, however it considers the period of non enrolment to be a substantial period during which time the purpose of the applicant’s stay was not for study, and not in line with the purpose for which his Student visa was granted. Although the applicant has obtained a new enrolment in a Certificate IV in Disability, the Tribunal is of the view that this enrolment has been procured in advance of the hearing to alleviate the Tribunal’s concerns about non enrollment, rather than out of any genuine desire on the part of the applicant to study the particular course.
The Tribunal gives these considerations some weight towards the visa being cancelled.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2)(a). The applicant has provided reasons for the breach which are set out above, namely, that due to the stress of having to look after his partner who was pregnant with their child and suffering from health problems during her pregnancy, he could not study as he had to look after her.
The Tribunal acknowledges that there is no other evidence before it of breaches of other visa conditions.
The Tribunal gives these considerations some weight in favour of the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal acknowledges that the applicant is married to an Australian citizen and has a young child and that a visa cancellation may cause difficulty for the family unit. However, it is plain on account of the partner visa lodged by the applicant, that if his student visa is cancelled, he will be eligible to apply for a bridging visa E which may enable him to remain in Australia pending the outcome of his partner visa application.
The Tribunal has regard to the entirety of the statement of the applicant’s wife. The applicant’s wife claims that she is the reason her husband stopped studying, for the purpose of supporting her and their child. She said further that her husband was solely responsible for their financial needs at the time which caused stress. She said he never intended to stop school. She said further that if anything negative happens to her husband, it will leave a great impact on her and her child, especially herself as her health situation is complicated, including issues pertaining to suicide.
The applicant claimed that the withdrawal of his sponsor led to his own depression and he did not want his son to grown up without a father. He claimed further that hardship will be caused to him by not being able to obtain a bridging visa B in the future if he wants to travel out of Australia with his wife while awaiting the outcome of his partner visa application. He is also concerned about losing his working rights and being unable to support his family.
The Tribunal does not consider the potential inability to travel to the applicant’s home country while waiting for the outcome of his partner visa to be particularly compelling as the applicant may be able to stay in contact with his family via electronic means, especially during the COVID-19 pandemic.
The Tribunal is unable to place significant weight upon the applicant’s claims of suffering depression as there is no medical evidence before the Tribunal to substantiate the allegations. However, based on the matters set out above, the Tribunal accepts that the cancellation has led to some personal detriment for the applicant which would be compounded by the continuation of the cancellation of the visa and the Tribunal gives this a little weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The ground for cancellation arose because the applicant did not maintain enrolment in a registered course of study from 9 January 2019. He did not re-enroll in a course until 14 July 2020.
The Tribunal acknowledges the applicant claims about supporting his wife during a difficult pregnancy, it acknowledges and accepts the applicant’s wife’s claims in her letter dated 13 July 2020, however, the Tribunal does not consider that the circumstances which led to the period of non enrolment were outside of the control of the applicant.
The applicant was not enrolled for a significant period of time. It was open to him to seek to defer his study. He did not do so as set out in his evidence above and the Tribunal does not find the applicant’s reasons for failing to defer his course to be particularly compelling in the circumstances. Further, the applicant was not enrolled for a period of approximately 12 months before he applied for a partner visa in early 2020.
Taking into account the above matters, the Tribunal is of the view that the reason for the breach of the visa condition was not outside of the control of the applicant and the Tribunal gives this consideration significant weight in favour of cancelling the visa.
Past and present behaviour of the visa holder towards the Department
The applicant has conducted himself in good faith in his dealings with the Department and its staff. He responded to the NOICC promptly and in some detail.
The Tribunal gives this some weight in favour of the visa not being cancelled.
Whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal of any consequential cancellations as a result of the applicant’s visa being cancelled. The Tribunal therefore gives this factor no weight for or against cancelling the visa for this consideration.
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
If the visa were to be cancelled, the applicant would be excluded from making applications for certain types of visas and may be liable to detention and/or deportation if he does not depart the country or apply for a bridging visa pending the outcome of his partner visa application. However, these are mandatory consequences of the legislation and in view of the fact that the Tribunal has found that the reason for the breach of the visa condition was reasonably within the control of the applicant, the Tribunal gives this little weight in favour of the visa not being cancelled.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
Relevant Departmental policy instructions (Procedural Advice Manual 3) relating to family separations states (at [76]) as follows:
“Obligations apply to persons within Australia’s territory and also to persons within Australia’s jurisdiction. The obligations that are most relevant to the cancellation process are those relating to the best interests of the child, family unity and non-refoulement (this latter term refers to an obligation that people should not be removed to frontiers/territories where they face certain types of harm)...”
Australia is a signatory to the Convention on the Rights of the Child (CROC) and the International Covenant on Civil and Political Rights (ICCPR). Article 3.1 of the CROC provides as follows:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.”
Australia is also a signatory to the International Covenant on Civil and Political Rights (ICCPR). Article 23.1 of ICCPR provides as follows:
“The family is the natural and fundamental group unit of society, and is entitled to protection by society and the State...”
The applicant and his wife share a son. The applicant’s wife is an Australian citizen and the applicant has lodged a partner visa application in early 2020 which is currently pending. If the applicant’s student visa is cancelled, he will be eligible to apply for a bridging visa pending the outcome of his partner visa application, and on that basis, there is no reasonable prospect of him being permanently separated from his wife and child pending the outcome of his partner visa application.
The Tribunal affords this consideration little weight against cancelling the visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
Not applicable.
Any other relevant matters
There are no other relevant matters for consideration.
Although the matters set out above do not reveal any bad faith on the part of the applicant, it is clear based on the evidence that the reason for the breach of the visa was reasonably within the control of the applicant.
It is also clear that the considerations I have arrived at, on examining and weighing all the evidence before me, lean towards the visa being cancelled and I so find.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Vanessa Plain
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2020] AATA 6000

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Breach

Remedies