Onyeoyibo (Migration)

Onyeoyibo (Migration) [2019] AATA 3886 (12 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Bright Uchenna Onyeoyibo
CASE NUMBER:  1715218
HOME AFFAIRS REFERENCE(S):           BCC2017/1506946
MEMBER:Joseph Lindsay
DATE:12 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 12 June 2019 at 3:24pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course – satisfactory course attendance – college denied applicant enrolment after exam results – prerequisites for further courses delayed – possible separation from wife – 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

This is an application for review of a decision dated 5 July 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).
The delegate cancelled the visa on the basis that the applicant failed to remain in a registered course of study and breached condition 8202(2)(a) of his student 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.
Prior to the hearing, the applicant provided documentation to the Tribunal including:
a.A number of emails dated in mid-2017 between the applicant and providers such as from Kangan Institute and Baxter Institute indicating that the applicant had made application to those providers.
b.An email dated November 2016 from the Civil Aviation Safety Authority (CASA) indicating that the applicant had applied for an Aviation Reference Number (ARN).
c.An email dated February 2017 from Basair Aviation College to the applicant indicating he had pre-enrolled for a course and that he had to pay his deposit by 23 March 2017.
d.A ‘letter of offer’ dated 6 December 2016 from Basair Aviation College to the applicant in respect to his enrolment in a Certificate IV in Aviation (Commercial Pilot Aeroplane Licence) and a Diploma of Aviation (Instrument Rating).
The applicant also provided a copy of his response to the Department of Immigration and Border Protection that stated:
In regards to the email I received from Vic General Cancellations about the Notice of Intention to Consider Cancelling my Visa because I may not have complied with condition s116(1)(b) breach of condition - 8202 stating ''the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance'' is false, I had a good attendance and I wrote an exam with them, if I hadn't had a satisfactory attendance or my attendance dropped below the percentage required I wouldn't even be allowed to write an exam. During the next semester when my results was out, I payed my fees but wasn't allowed to enrol or assign to any class because I had an unsatisfactory result and my CoE was going to get cancelled, I was told to book an appointment with a student adviser and when I did I was told I wasn't allowed to assign to a class because I had an unsatisfactory exam results. I still went to some lectures but didn't attended tutorial classes or laboratory sections where attendance are taken because I wasn't assigned to any class. I had a good attendance so the information was wrong and I think it's ludicrous if my attendance was declining even though I wasn't even allowed to enrol into a class.
I think my visa should not be cancelled because regarding to my email in condition 8202(2)(a) which states that ''the visa holder meets the requirements if the visa holder is enrolled in a registered course. Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that you have not been enrolled in a registered course of study since 28 September 2016. Therefore, it appears you do not meet the requirements of condition 8202(2)(a)''. That was because I was NEVER informed or advised that I was allowed to apply to an educational institution, not even the immigration agent who was my adviser told me I could still apply to other institutions with my current visa, he goes by the name Michael Sestak (I gave out the name because this is a confidential email and to prove I'm not lying) even when I called DIBP to know what step to take since the immigration agent my university referred me to stopped answering my calls, texts and email all of a sudden, I was told I will have to apply for a new course and get a new visa while still in Australia by one of the DIBP representatives over the phone. This was the same advice I got from the immigration agent, no one ever mentioned that I would be able apply to other institution and study with my current visa.
I still took their advice and applied to Basair Aviation College for a course so I can become a certified pilot, I got an offer from basair but didn't get my CoE because I was advised not to pay yet unless I've got my Aviation Reference Number (ARN) and my Class 1 Medical because it takes months to acquire those and also because I had to apply for a different visa too, I missed enrolled dates because of this and now I currently have my ARN and looking forward for my class 1 medical. I was hopping to start in July or August as a fresh start. Another issue I have to mention are the fees, I had the amount to pay to get my Confirmation of Enrolment (CoE) but as required I had to pay little over $28,000 in the first 2 months of commencement and another $27,000+ in the next 2 months which wasn't readily available at that moment but that and the all the course payment isn't a problem now. I was never idle and I only didn't apply for other Institution cause all the people who were in position to guide me failed to properly do so. When I got the notice of the intention to consider cancelling my visa, I realised I could still use my current visa to apply to other institutions, I've applied to Tafe and gotten a reply, I've done the required Literacy and Numeracy Assessment and waiting to be called for the final interview before getting a offer and then a CoE.
I understand that it's my poor performance in the exam that led me down this road but my current situation could have been totally avoided if those put in place to help people in my position had given me the right advise and not make it look like my visa was already condemned, I've showed that I'm not a slacker and have applied to an educational institution the moment I realised I could do so with my current visa, I've already passed the literacy and numeracy assessment and waiting for the final interview before commencement. I've decided to show how determined I am by stating that if I don't start studying in July when the course commences let the delegate cancel my VISA without notice or warning. If my visa is cancelled it will not only affect my intended studies in Australia but it will affect my personal life and my fiance, I was told by TSS Immigration that if my visa gets cancelled I will be blacklisted and won't be allowed back into Australia and I can't afford for that to happen especially in a situation that could have been totally avoided. No one in my position could have done any better, once the people put in place to help advice and lead us give us the wrong advice then we are destined to fail no matter what we do.
It states on the letter that ''If the delegate decides there is a ground for cancellation, the delegates will consider whether there are any reasons not to cancel your visa'' I've shown seriousness since I knew I could still study with my current visa, I've applied, passed test and waiting for final interview, I waited till the last day so I could show my progress so far. I've even given my words to cancel my visa without a warning if I don't start in the month July in 2017, I don't think anyone can show more determination than this. But If unfortunately at the end of the day the delegates decides to cancel my visa I hope I will be given a chance to go study at Basair with a new visa and not get blacklisted for the sake of my fiance and intention to complete my studies here in Australia.
The applicant also provided a written submission to the Tribunal that stated:
I'm writing this to state the reasons why I disagree with the Department of Immigration and Border Protection (DIBP) decision, this statement is mainly to debunk most if not all (every) reasons the Department has used to cancel my visa. The very first reason being ''Based on evidence available to me in the Provider Registration and International Student Management Systems (PRISMS), Bright Uchenna ONYEOYIBO has not been enrolled in a registered course of study since 28 September 2016. Therefore, Bright Uchenna ONYEOYIBO does not meet the requirements of condition 8202(2)(a)''. This statement is true however the only reason I wasn't enrolled in a registered course is that shortly after my CoE was canceled by my educational provider (UTS Insearch), I was referred to an Education and Migration Consultant by UTS Insearch. I was being advised by him and he NEVER told me that I could or would be able to apply to other educational institutes, all I told is that I need to apply for a new visa because my current one will be canceled, when he suddenly stopped responding to my calls, messages, and emails I decided to call DIBP themselves since other means of getting assistance would require me to pay money which I didn't have at the moment. When I called DIBP I was told the same thing, that I need to apply for a new visa they NEVER, to that I can still apply to other institution. When those who are qualified and put in place to guide people like me who need help misguide me, should I be responsible and take accountability for being misguided, should I pay the price for being misguided, should I have my visa canceled acting on the things I was told to do by those who are put in place to do so?. Yes, I did take their advice and was in the process of applying for a new visa but that will be addressed in another paragraph.
Other reasons being "In response to the Department's NOICC, Bright Uchenna ONYEOYIBO provided that he was never informed or advised that he was allowed to apply for other institution providers on his current visa. He provided that not even his immigration agent advisor told him he could apply for other institutions. Bright Uchenna ONYEOYIBO claims he was given the wrong advice. I have considered this information, however Bright Uchenna ONYEOYIBO has not complied with his visa conditions for over nine (9) months. This is a significant time of non-complied. It is reasonable to expect Bright Uchenna ONYEOYIBO could have made attempts to use a different immigration agent. It is also reasonable to expect Bright Uchenna ONYEOYIBO would know a condition of his TU 573 visa is to be enrolled in a registered course of study". I didn't comply with visa conditions for nine (9) months because I was too busy acting on the wrong advice I got my the migration consultant and DIBP themselves. Was trying to apply for a new visa which requires me to get an offer and finally a CoE from an educational institute which then will give me some form of a letter to be able to apply for a new visa. I found an education Institution called Basair but as an Aviation College you can't just get an offer and pay and get your CoE, I had to get a CASA approved Aviation Reference Number and Class 1 medical which takes months to acquire. This let me miss some enrollment dates since I was told not to pay the fees for my CoE if I don't have both my AVN and Class 1 medical. I did make attempts to use different immigration agents but I was told I had to pay for each consultancy, UTS Insearch was covering for the payment with the migration consultant before he stopped responding. I didn't have money for it at the moment so I decided that the best thing to do is call DIBP for a first-hand explanation and I was told the same thing "you'll have to apply for a new visa" when I could afford to pay for a consultancy by a migration agent I as any normal human thought why should I pay to be told the EXACT same thing I've been told by my former consultant and DIBP, so that's why I didn't get a different consultant or agent, I started acting on the things I was told to do. Even if I had full knowledge that my TU-573 visa condition requires that I should be enrolled in a registered course do you think I would apply for a registered course of study when I've been told multiple times that it won't work and I need to apply for a new visa?.
It stated "Bright Uchenna ONYEOYIBO provided that he has apllied for a course at Basair Aviation College for a course to become a certified pilot. He claims he got an offer for the College, but didn’t get his CoE because he was advised not to pay yet unless he got his Aviation Reference Number (ARN) and a class 1 Medical. As it took months to acquire those, he missed the enrollment dates. He now hold ARN and is looking forward for his class 1 medical. I have considered this information, however Bright Uchenna ONYEOYIBO has not provided any supporting documents of these claims. I therefore give little weight to this consideration in his favor". I have submitted supporting documents for this in the appeal, why didn't I do it earlier? They have all my educational stats on Provider Registration and International Student Management Systems (PRISMS), they could have simply looked it up on PRISMS and seen it. I think to myself that if I had lied about getting an offer from an educational institution the department would know known and used it as more reason to cancel my visa.
Finally it stated that "Bright Uchenna ONYEOYIBO provided that when he received the NOICC, he now realised he could use his current visa to apply to other institutions. He claims to have applied for TAFE and received a reply. He proved that he completed the Litracy and Numeracy Assessment and waiting to be called for the final interview before getting an offer and then CoE. I have considered this information, however Brigth Uchenna ONYEOYIBO has not yet provided any supporting documents to support his claims. He did not supply any evidence of correspondence he had with the education provider. It has been over three (3) weeks since Bright Uchenna ONYEOYIBO responded to the Department's NOICC, and evidence on PRISMS show he still does not hold an approved CoE." As I've already provided a supporting document for my application stopped being processed because I failed to meet their Genuine Temporary Entry (GTE), when I call them the explained that it was because I already got a Notification of Intention to Cancel by DIBP and they can't offer me a place because they weren't sure if my visa would be canceled or not, I told the lady that DIBP is paying attention and that if I don't get an offer soon and pay for my CoE they'll use it as a reason to push canceling my visa, I even sent them my reply to immigration and she considered me and said she'll talk to her boss about it, next they I get an email (still in the supporting documents) saying their decision remains. I called and ask if they could refer me to other institutions which they did (provided proof) one of the institutions they referred me to when I went to their office with all my required documents they still said the same thing, "we can't give you an offer because we're not sure if your visa will be canceled". I have never sat a day doing nothing, always over thinking, stressing, running around to see if I could make things work out for me and at the end of the day all my efforts being dismissed and acted upon like I was sitting at home doing nothing for 9 months. I refuse to sit here and let all my efforts be swept away.
Some explanation in one paragraph debunks multiples of their reasons, the once I hand picked and explained the situation better, required a better insight to it and explained with supporting document to prove I was being completely honest honest.
The applicant attended the hearing before the Tribunal on 21 March 2019 at 10:30am. The applicant was not represented and did not require assistance from an interpreter.
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 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 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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
In respect to his student enrolment history, the applicant indicated he had enrolled in a Bachelor of Engineering. He indicated he did not “make the score” in his foundation program course to go on to undertake his engineering course in aerospace engineering. He indicated that he also had been enrolled in a Diploma of Engineering. The Tribunal finds that the applicant’s account of his student enrolment history is accurately reflected in his Provider Registration and International Student Management System (PRISMS) record.
In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 5 July 2017 indicating that he had not been enrolled in a registered course of study since 28 September 2016. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 28 September 2016.
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). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.
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.’
The circumstances in which the ground for cancellation arose
The Tribunal asked the applicant why he allowed his course enrolment to cease. The Tribunal put to the applicant that the Tribunal had read his written submissions to both the Department and to the Tribunal. The Tribunal put to the applicant that in his response he indicated he wanted to be a pilot, to which he agreed.
The Tribunal put to the applicant that he was reasonably aware that, as a visa holder, he had to abide by his visa conditions and had to remain enrolled in a registered course of study. The Tribunal asked the applicant why he allowed his course enrolment to cease.

In response, the applicant indicated he was told by a “consultant” that he was referred to by his course provider that his Confirmation of Enrolment (COE) was cancelled and he was going to have to apply for a new visa. The applicant indicated that the consultant encouraged him to undertake a course that the applicant wanted to do. The applicant told the consultant he wanted to be a pilot. The applicant indicated that the consultant referred the applicant to an organisation called “BASAIR Aviation” and that if he applied to that provider for a two-year diploma course that he would be provided a new student visa. The applicant swore that he was not lying.
The Tribunal put to the applicant that what he had said was reflected in his written submissions. However the Tribunal indicated to the applicant that as the holder of a student visa it was his responsibility to approach the Department to explain what was happening to him and to seek advice and options. The Tribunal put to the applicant that it had no information that the applicant had approached the Department.
The applicant responded that he did not physically go to the Department but that he telephoned the Department. He claimed a representative from the Department told him in a phone conversation that he had had a cancelled COE and therefore his current student visa was going to be cancelled. He claimed the representative from the Department told him that the best thing he could do was apply for a new visa while he still had time.
The Tribunal asked the applicant if he applied for a new visa. In response the applicant said he needed a new COE so he applied to “BASAIR Aviation” and got the acceptance offer. He said that what remained for him to do was to get his Civil Aviation Safety Authority (CASA) Aviation Reference Number (ARN) and also to do his medicals.
The Tribunal put to the applicant that what he had said at the hearing was consistent with his written submissions. The Tribunal put to the applicant that whatever course he indicated he was going to do, the requirements of the student visa required that he remained enrolled in a registered course of study. The Tribunal put to the applicant that if he decided to cease his enrolment in a course, whatever that course may be, there was still the requirement for him to remain enrolled in a registered course of study at all times on his student visa.
In response, the applicant said he knew about the condition of his student visa of him having to be constantly enrolled. He indicated he changed his mind on what he wanted to study because he took advice from the consultant as well as the representative from the Department.
The applicant claimed he initially didn’t have enough money to go and speak with a separate consultant but by the time he did get the money he did not see the consultant because that would cost between $100 and $150 and he indicated he did not see the point in getting further advice because he thought he would merely get the same information.
The Tribunal put to the applicant that the information in the decision record indicated that he ceased his course enrolment (on 28 September 2016) and he remained without an enrolment until he was given the Notice of Intention to Consider Cancellation (NOICC) by the Department (on 6 June 2017), to which he agreed.
The Tribunal asked the applicant that if he knew he didn’t want to study engineering and he knew he wanted to be a pilot and he knew there would be a time lag until he could start his pilot’s course, why he did not return to his country of origin and seek a fresh visa from there. In response, the applicant indicated he was afraid if he departed Australia he was going to get a visa ban. The applicant further indicated that he thought that if he did not hold a new visa and he left the country that he would be described as “missing in action”. He thought that everything (actions in regard to his student visa) had to be done in Australia and he couldn’t do it (actions in regard to his student visa) from his home country.
In respect to the above information, the Tribunal makes the following findings:
·the applicant appears to be an intelligent and articulate person.
·The applicant admitted that he knew that he had conditions on his student visa that he had to abide by and that he knew he had failed to abide by those conditions.
·The applicant ceased to be enrolled in a registered course of study on 28 September 2016.
·It wasn’t until sometime after the applicant ceased to be enrolled that he took steps to enrol in a course to become a pilot.
·There is no indication that the applicant actually enrolled in any other course since he ceased to be enrolled in a registered course of study on 28 September 2016.
·The applicant remained without an enrolment in any course of study from 28 September 2016 onwards.
·Around the time the applicant was provided the NOICC by the Department, the applicant attempted to enrol himself in a course of study.
Given the Tribunal’s findings above, the Tribunal finds that the applicant failed to take reasonable steps in all the circumstances in regards to managing and maintaining his enrolment in a registered course of study as he was required to do to maintain compliance with the conditions of his student visa.
The Tribunal finds that the circumstances in which the applicant failed to maintain his enrolment in a registered course of study were not beyond his control.
The Tribunal places low weight on the applicant’s information as to why he failed to maintain his course enrolment.
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
The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
The extent of compliance with visa conditions
The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant what hardship would he experience if his student visa was cancelled. In response the applicant indicated that it would be one of the biggest setbacks in his life because he was going to return to Australia as soon as he could to do his pilot’s course. Then the applicant said it was going to affect his marriage. The applicant claimed that he got married to an Australian citizen in 2017. The applicant indicated that he and his spouse had been together for nearly four years. He indicated his personal love life, his family life and his education life would all be affected if his student visa was cancelled.
After the hearing, the applicant provided the following information on 28 March 2019 to the Tribunal:
Before the hearing was over I was asked if I had anything to say before it ended which I answered no to, I didn't have anything to say then because at the time of the hearing I was overwhelmed with everything, stressed and wasn't thinking straight when I was asked the question, but after I left and got home and began to relax I realized I had so much to say, I initially thought it was too late to add anything that may help my situation but I had to write this after I rang AA T and got told I can send in documents to support any claim and aid my situation before a decision have been made so I'm doing so now I'm writing this to not only state the many things that could go wrong and the negative effects it'll have in both me and my wife's lives but also to state the solid plans I have on my pursuit for a better and successful life for us here in her home country, Australia. I'll start off with how things could go terribly wrong, negative effects and impact on our lives. If AAT goes ahead in agreement with the decision of DIBP for the cancellation of my student visa it's not only going to have a massive negative impact on my life but also on my wife's life, we won't be able to see each other for 3 years unless she visits me in Nigeria which I know she would and that's extremely dangerous for a person of an European descent, Nigeria relatively isn't a safe country in general and it gets worse for foreigners, the northern part of the country have been fighting terrorism since 2009 and currently battling a West African affiliate of ISIS to ,he more specific and in the Southern part where I live there's issues with militancy and the kidnapping of foreigners and asking for ransom and things going terribly wrong if the ransom is not paid at a certain period of time. This have been a major problem and constant worries I have about my visa being cancelled, not only is it going to put the future me, my wife and the family we're trying to build on hold for 3 years it also puts her very own life at risk and in danger. She knows about all these, we've talked about it a lot and she says she knows the risks and she'll take it. I can't tell her not to visit either cause I don't want her to feel like she's not wanted, especially when she wants to come over to me, I don't want to give her the wrong impressions at all. There isn't a possible way that a happily married couple can or will want to be away from each other for 3 years. she told me multiple times that when we made the vows to be with each other for better or worse till the end of time that she was dead serious and meant every word of it, she said she won't let anything stop her and will never let go. Don't know how AAT or DIBP views the citizens of Australia but her wellbeing, safety and happiness is my utmost priority and I don't want her to ever be in harm's way but there's nothing I can physically do about that in the situation and it terrifies me.
If my visa cancellation is overturned I will immediately apply for Bachelor of Aviation at Swinburne University, I know it's an expensive course but it's my life goal to become a commercial airline pilot and money is not a problem, I've lived in Australia for Almost 5 years, I have never worked a day in my almost 5 years of living here, not to mention 2 and a half of those years I lived in the city of Sydney as expensive as the city is, I've never had problems with paying my fees when I was enrolled in a course at a university. I mentioned these to make you better understand that the finance of my course isn't and won't be an issue if my visa cancellation is overturned. My parents are very wealthy so I have the finance, the motivation and will to build a beautiful life for myself, my wife and our future family. Not to mention but I have contributed heavily to Australia's economy from university fees to rents to foods to clothing to transportation and other things I can't think of at this moment, I have honestly spent over a hundred thousand dollars in Australia with no job or source of income in Australia. All I have got from being in Australia is living in a modem, peaceful, lovely and amazing country and I cherish it so much and it's all I ask for. I have planned my whole life and future here and have found an absolutely amazing woman who completes me here too. I don't have any criminal records or bad records with either DIBP or the Australian Police or the good people of Australia. All I ask for is to be given another chance because I know and certain I'll get it right this time. I know I sound very desperate right now but nothing is too desperate for me to make sure that my wife is ok, safe, happy and gets the life she deserves. As long as I breathe I'll make sure she is safe and well taken care of, I'll do everything in my power to make sure she doesn't get in harm's way and if I have to beg and look desperate then so be it, I don't want her to have to suffer the grim consequences of my actions so I plead with AA T to consider her in all this before making a decision because I could lose more than a visa. As mentioned above nothing is too desperate for me when I want my wife's safety, to build an amazing future and life for us and our future family here in Australia, nothing is too desperate to ask for a chance for a better future, I will work for it and I will achieve it, all I need is a chance to give it another shot.
In consideration of the above information, the Tribunal accepts that the cancellation of the applicant’s student visa would indeed be a setback for him. The Tribunal accepts that the applicant wishes to do a pilot’s course and he wishes to do that course in Australia only. The Tribunal gives this evidence low weight in his favour because pilot’s courses are not exclusively offered in Australia. Courses in respect to training of pilots are conducted at various institutions and providers around the world.
The Tribunal accepts the applicant has married an Australian citizen. The Tribunal accepts that if the applicant’s student visa is cancelled and he is required to return to his country of origin, these actions may result in personal difficulties that impact on both the applicant and his spouse. However, his three-year ban in respect of his ability to apply for another Visa is only temporary and indeed the range of measures that can be taken by the applicant to allow him to manage his relationship with his spouse noting that the applicant has indicated he has wealthy parents and access to a substantial amount of money to support him in this endeavour. Accordingly, the Tribunal places low weight on the applicant’s evidence in his favour.
The Tribunal accepts that the applicant has spent a lot of money living in Australia and in paying course fees and the Tribunal places some weight on the applicant’s evidence in his favour.
The Tribunal accepts that the applicant has indicated he has solid plans to have a life for himself and his spouse in Australia but notes that this indicates that the applicant is in fact not a genuine temporary entrant in respect to the conditions of the student visa. Accordingly the Tribunal places low weight on the applicant’s evidence in his favour.
The Tribunal has carefully considered and weighed the above matters and the Tribunal gives low overall weight in the applicant’s favour in regard to this factor.
Past and present behaviour of the applicant towards the Department
There is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
There is no evidence that there are any dependants attached to the applicant’s student visa. The Tribunal places low weight on this information 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
The applicant indicated he was very much aware of the legal consequences of the cancellation of his student visa and he was aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chose not to return to Nigeria.
The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.
The Tribunal places low weight on this information in the applicant’s favour.
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
In respect to this criterion, the applicant told the Tribunal that he had no difficulties in returning to his country of origin and indicated that he was not seeking to run away from his country of origin for any reason.
The Tribunal asked the applicant if he was seeking protection and he responded “no, no, no”.
There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places no weight on this information in the applicant’s favour.
Any other relevant matters
The applicant indicated to the Tribunal that he was confident that despite the three-year ban he would make it back to Australia at some point – in order to study to be a pilot.
The applicant claimed that his parents were wealthy and that he had plenty of money to afford to pay for the pilot’s course. The Tribunal asked the applicant is there any reason why he could not do the pilot’s course in his country of origin and response indicated that the pilot’s courses in Nigeria were not as developed nor is the aviation industry in Nigeria generally as developed as it is in Australia.
The applicant indicated to the Tribunal he wanted the Tribunal to consider the human factor. The applicant indicated that people can make terrible mistakes in life but that he refused to give up. He indicated that he did not want to move to another Western country. He said that Australia is a country that he found very peaceful and a great place to live. The applicant claimed he wanted to have a future in Australia. He said he regretted a lot of things but he was always going to keep fighting until things got better. He said the same timeframe of the three-year ban that he would get if his student visa was cancelled was the same amount of time in which he could complete his course in aviation at Swinburne University. He said he did not know how the three-year ban was going to affect his love life because he couldn’t reside in Australia. He indicated he did not know how good his country was going to be for a Western woman coming to it. He indicated that Nigeria was not the best place for Westerners. While he said he was fine to go back and live in Nigeria he was concerned about his wife and that she may not feel comfortable in the conditions of Nigeria.
When the Tribunal asked the applicant whether he ended up enrolling in Swinburne University for his aviation course he indicated he could not because his visa had been cancelled.
The applicant indicated that he applied to a number of providers and referred to the emails he provided to the Tribunal. The Tribunal noted emails the applicant provided in relation to Kanga Institute and to Baxter Institute.
In respect to the matters raised above, the Tribunal has already considered and made findings in respect to those matters.
There were no other relevant matters that the applicant put before the Tribunal.
Conclusion
The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 11 June 2014.
The Tribunal finds the applicant has not been enrolled in a registered course of study since 28 September 2016. Accordingly, the applicant has not complied with condition 8202(2)(a).
The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances.
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 Subclass 573 Higher Education Sector visa.
Joseph Lindsay
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.

[2019] AATA 3886

12 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction