Osahon (Migration)

[2020] AATA 4769

Osahon (Migration) [2020] AATA 4769 (3 August 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Davidson Nosakhare Osahon
CASE NUMBER:		1824697
HOME AFFAIRS REFERENCE:		BCC2018/353343
MEMBER:		Dr Jason Harkess
DATE:		3 August 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Statement made on 3 August 2020 at 2:48pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –breached condition 8202(2)(b) – applicant has not maintained enrolment in a registered course– partner fell pregnant – best interest of child – genuine desire to continue to study – satisfactory course progress– decision under review set aside

LEGISLATION
Migration Act 1958, s 116

Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of Nigeria and is 24 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 17 August 2018 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’).

Original Visa Grant

1. The Applicant’s visa was granted on 22 December 2016. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

2. The visa had an original expiry date of 15 March 2021 before it was cancelled. It provided for more than four years during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Bachelor of Architecture & Built Environments at the University of Tasmania.

Reasons for Cancellation

1. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with a condition of his visa. Specifically, it was found that the Applicant had failed to comply with that condition which required him to maintain enrolment in a registered course of study.

2. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

3. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 17 August 2018. He also lodged a copy of the decision record when he lodged his review application with the Tribunal on 24 August 2018.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the ground for cancellation under s 116(1)(b) of the Act is made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines that ground for cancellation is made out, the second issue requiring consideration is whether the Applicant’s visa ought to be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 16 October 2020.

2. The Applicant appeared before the Tribunal to give evidence and present arguments. The Applicant was assisted by his registered migration agent, Mr Osaigbovo Ojo.

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be set aside in this case. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the oral evidence and arguments of the Applicant given at the hearing;

   (c)the documentary materials lodged by the Applicant.

   (d)other relevant documents on the Tribunal and Department files.

2. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference only to that information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[2]

GROUND FOR CANCELLATION

[2] The Tribunal notes that it is not required to make explicit reference every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case. See Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271.

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

2. Condition 8202(2)(a) attaches to all student visas and creates a continuing obligation for the duration of the visa.[3] It requires the visa holder to maintain enrolment in a registered course of study.

   [3] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a).

3. The imposition of Condition 8202(2)(a) draws attention to the fact that all student visas are issued for a specific purpose. The visa holder is legally obliged to adhere to that purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they must take steps to enrol in another course to ensure ongoing compliance with their visa conditions. In that regard, Condition 8202(2)(a) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused.

Has the Applicant Failed to Comply with Condition 8202(2)(a)?

Delegate’s Allegations and Findings

1. As the delegate’s decision record further notes, the Applicant’s enrolment in the Bachelor of Architecture & Built Environments course at the University of Tasmania was cancelled on 1 August 2017. The Applicant did not enrol in any other course until 17 July 2018 when he enrolled in a Bachelor of Community Services at Acknowledge Education.

2. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[4] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued

   [4] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. The delegate had determined that the Applicant was in breach of Condition 8202(2)(a) of his visa for the period 1 August 2017 to 17 July 2018. This amounted to more 11 months during which the Applicant was in continuous breach of his visa.

Applicant’s Response to Allegations

1. The Department of Home Affairs (‘the Department’) wrote to the Applicant by letter dated 30 April 2018, notifying him of its intention to consider cancelling his student visa (‘the NOICC’). At this stage, the Applicant had been in breach of Condition 8202 for nine months. The NOICC set out particulars of the matters that have been summarised above and put the Applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The Applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.

2. The Applicant responded to the NOICC in writing on 8 May 2018 (‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202 of his visa as alleged, although he sought to explain the circumstances giving rise to the breach.

3. At the hearing before the Tribunal on 16 October 2020, the Applicant admitted that he was in breach of Condition 8202(2)(a) of his visa as alleged.

Conclusion

1. Based on the evidence before the Tribunal, it is reasonably clear that the Applicant was in breach of his visa as alleged by the delegate. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(a) of his visa.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. Having found that the Applicant failed to comply with a condition of his visa, the Tribunal must proceed to consider whether his visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The matters that ought to be considered are specifically listed in PAM3 as follows:

   (a)the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   (b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   (c)the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   (d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   (e)the Applicant’s past and present behaviour towards the Department (e.g., whether they have been truthful and co-operative in their dealings with the Department);

   (f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   (g)whether there are mandatory legal consequences arising from a decision to cancel the visa;

   (h)whether Australia has obligations under any relevant international agreements that would be breached as a result.

Circumstances

1. In his NOICC response, the Applicant explained the circumstances of his breach of Condition 8202 as follows:

   (a)He did not deliberately breach Condition 8202.

   (b)His partner fell pregnant in March 2017. He prioritised her care and health. His studies were disrupted as a consequence.

   (c)His parents, who were financially supporting during his stay in Australia, were having temporary difficulties with their finances in Nigeria. This, in turn, impacted on the Applicant’s capacity to meet his financial obligations in relation to his education in Australia.

   (d)His partner, after the birth of their child, experienced a difficult recovery as a result of having a caesarean childbirth.

2. At the hearing before the Tribunal, the Applicant gave evidence that was largely consistent with that which he had expressed in his NOICC response.

3. The Tribunal accepts the evidence of the Applicant. However, while it accepts the Applicant to be a witness of truth, it does not accept the difficult life circumstances as justifying such a lengthy period of breaching Condition 8202. It seems the Applicant’s enrolment in a Bachelor of Community Services course was also at least partially prompted by the imminence of the delegate cancelling his visa. Accordingly, while the Tribunal gives the circumstances surrounding the Applicant’s breach some weight in favour of not cancelling his visa, ultimately it does not accept that he has provided a compelling case that excuses him for the breach.

Purpose of Applicant’s Stay in Australia

1. The Tribunal has considered the possibility that the purpose of the Applicant’s visa could still be served if it is not cancelled. In that regard, the Tribunal has considered the evidence that he has made considerable progress in the Bachelor of Community Services course since he enrolled in that course two years ago. The Tribunal gives this considerable weight in the Applicant’s favour.

Extent of First Applicant’s Compliance with Visa Conditions

1. The Tribunal has given consideration to the Applicant’s compliance with other visa conditions of this visa and previous visas issued. There is no information before the Tribunal that suggests that previous allegations have been formally made against the Applicant for non-compliance with his visa conditions.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education in relation to which he is now making considerable progress. The Applicant has a partner and an infant child living in Australia. It would be psychologically traumatic if he is forced to leave them.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard. The Tribunal further notes that the Applicant has taken all necessary steps to assist the Tribunal in resolving the review application as quickly as possible.

Other Visa Holders

1. There are no other visa holders whose visas are connected with the Applicant’s visa for the purposes of s 140 of the Act.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. The Tribunal considers these consequences unduly punitive in the circumstances of this case.

International Obligations

1. The Applicant’s daughter was born in Australia on 3 January 2018 and is currently residing in Australia. Australia is a signatory to the Convention of the Rights of the Child. The Tribunal has given consideration to the Applicant’s child and what is in her best interests, including that it is desirable for a child to remain within a cohesive family unit with stability and security in the child’s home life. While it would cause some disruption if the Applicant were forced to leave Australia as a result of cancellation of his visa, his residence entitlement in Australia has only every been temporary. The Applicant, in consultation with his partner, is also at liberty to choose where he, his partner and child reside in accordance with the laws of Australia and other relevant countries. The Tribunal has, however, given this factor some weight in favour of not cancelling the Applicant’s visa.

Conclusion

1. In all the circumstances, the Tribunal is of the view that the Applicant’s visa should not be cancelled. The delegate’s decision should be set aside. The Tribunal notes that this decision is made on the basis primarily on the basis of the significant progress he has made in his current studies since his visa was initially cancelled by the delegate.

DECISION

1. The Tribunal sets aside the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa and in its place substitutes a decision not to cancel the visa.

Dr Jason Harkess
Member