Oyelola (Migration)

[2019] AATA 4318

Oyelola (Migration) [2019] AATA 4318 (26 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adedamola Akinyinka Oyelola

CASE NUMBER:  1731301

HOME AFFAIRS REFERENCE(S):           BCC2017/3683302

MEMBER:Mark O'Loughlin

DATE:26 September 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 26 September 2019 at 12:11pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – non-payment of fees – financial assistance – currency restrictions – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 December 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).

2.    The delegate cancelled the visa on the basis that the applicant had breached the requirement that he be enrolled in a registered course and that the grounds for cancelling the visa outweigh the grounds for not cancelling it.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3.    The applicant appeared before the Tribunal on 5 August 2019 to give evidence and present arguments.

4.    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

5. 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.

6.    The Tribunal has had regard to the following relevant documents that have been provided by the applicant;   

a.Copy of the decision of the delegate of the Minister for Immigration and Border Protection dated 5 December 2017;

b.Applicant’s communication headed “RE: Notice of Intention to Consider Cancellation of TU/573/BCC2017/3683302 dated 21/11/2017 and attachments; and

c.Letter from Shonibare and Shonibare, barristers and solicitors dated 13 August 2019.

7.    The Tribunal had access to the following documents but did not rely upon them as the applicant gave evidence on the matters that they covered and the Tribunal relied on the applicant’s evidence rather than the information in these documents;

a.Movement records relating to the applicant and dated 12/12/2017 and 4/07/2019;

b.PRISMS records dated 4/07/2019;

8.    There are no other documents to which the Tribunal has had regard in coming to its decision.

Did the applicant comply with Condition 8202?

9.    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)

1. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

2. The applicant agreed that his enrolment was cancelled by Flinders University in about April 2017 and that, although he had hoped to have it re-instated, it was not.  He further said that he was unable to secure enrolment in any other registered course.

3. 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).

Consideration of the discretion to cancel the visa

1. 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’

2. The applicant said in his evidence, and the Tribunal accepts, that his enrolment was cancelled because he did not pay his tuition fees and was not able to make other arrangements.

3. The Tribunal notes that, included in the documents attached to the applicant’s response to the Notice of Intention to Consider Cancellation, are several emails to Flinders University from late March 2017 to the 4^th of August 2017 during which time the applicant was attempting to defer cancellation of his enrolment, or have his enrolment reinstated.

4. The reason that the applicant gave the University for being unable to pay was that there were restrictions on the payment of money from Nigeria to foreign countries.

5. Enclosed with his response to the NOICC, the applicant provided a document dated 10 October 2017 from Zenith Bank that indicated that a “Zenith Bank Naira Card” could, from then, be used for international transactions of up to US$1,000.00 per month.  There is nothing to say whether this represented a change in a previously set limit or it was just one of the normal conditions on a card.  Indeed there is nothing to show that the applicant was relying on this type of card to receive payments from Nigeria.

6. There was also a letter from the applicant’s father dated 1 August 2017.  In that letter the applicant’s father says that he will make fortnightly payments of $1,500.00 and that he cannot transfer more because of “the prevailing currency policy in Nigeria”.

7. In the hearing the Tribunal noted that the delegate had expressed concern that there was no evidence of failed attempts to make currency transfers or other “equivalent documents to establish the rejection of attempted currency transfers from Nigeria”. [1]

   [1] Page 4 6^th paragraph of Delegate’s Decision of 5 December 2017.

8. The applicant did not provide any such documentation to the Tribunal in support of his application for review.

9. The Tribunal explained that if the applicant could satisfy the Tribunal that there was a restriction on the transfer of funds and that the applicant’s enrolment was therefore cancelled for reasons outside his control, that that may be a consideration in his favour. 

10. The Tribunal also said that it assumed that such evidence would exist . 

11. The Tribunal indicated that it would hold its decision for a period of two weeks from the date of the hearing for the applicant to obtain and furnish any relevant information.  The Tribunal further indicated that if the applicant finds that there is relevant evidence available to him but that it will take longer than 2 weeks to obtain it, he should approach the Tribunal and seek further time which may be granted.

12. The applicant subsequently provided a letter from Shonibare and Shonibare, barristers and solicitors indicating that from 2016 the financial policy of the Federal government of Nigeria prohibited the central bank of Nigeria from allowing foreign exchange transaction payments for “study abroad”.

13. The applicant did not seek further time to provide any other documentation.

14. The letter also referred to an online article at a site called ICEF Monitor which describes itself as “a dedicated market intelligence resource for the international education industry.”

15. That article, headed “Nigeria tightens foreign exchange controls to limit use for study abroad”, indicates that the central bank of Nigeria had been exercising currency controls one of which was to exclude certain transactions from access to foreign exchange in the official Nigerian market.

16. The article suggests that from about February 2016 Nigerian parents were unable to purchase foreign currency through official banks to pay school fees. The effect of that was that such transactions would need to be conducted through the open market at a much higher, often prohibitively high, exchange rate. The article says that the effect of this would be to double the cost to a Nigerian are paying school fees in a foreign country.

17. The applicant gave evidence that he came to Australia in July 2016. He continued attending classes at Flinders University until about 4 August 2017.

18. The applicant said in his response to the notice of intention to consider cancellation of his visa, such response being dated 21/11/2017, but his problems were in making payment for the second semester school fees and that he approached the University on 17 March 2017 and again on 10 April 2017 hoping to pay by instalments.

19. That request was unsuccessful.

20. If (as suggested by Shonibare and Shonibare barristers and solicitors and in the article in ICEF monitor) the currency restrictions were introduced in early 2016, they must have been in place for some months before the applicant came to Australia and well before March 2017 when the applicant says his financial problems arose.

21. The Tribunal is not satisfied that the grounds for cancellation arose from circumstances beyond the applicant’s control. Given the Tribunal’s finding the restriction on foreign exchange transactions was in place before the applicant left Nigeria, it was incumbent on the applicant to ensure that he was in a position to meet the cost of tuition before he came to Australia.

22. Further, the Tribunal is not satisfied that there was any relevant change in the applicant’s circumstances after his arrival in Australia.

23. The applicant said, and the Tribunal accepts, that the purpose of him travelling to and remaining in Australia was to study.

24. He told the Tribunal that, during those times that he had working rights, he had worked as a carer at a rate of about $AU$1200.00 per fortnight.

25. He said that when he was studying he was able to make a small contribution to the cost of his tuition from his earnings.

26. He also said that he had earned about $AUD5,000.00 to 7,000.00 per annum in Nigeria and that with the Masters in Environmental Management he hoped to earn the equivalent of about $10,000.00 to $20,000.00.

27. He was asked if the earnings in Australia might be seen as an inducement to stay, to which he said that he did not find the work that he was doing as a carer to be to his taste and he wished to finish his course and return home to work there.

28. At the time of the cancellation of his visa the applicant’s enrolment had been cancelled for over 7 months. The Tribunal finds that in the absence of an acceptable reason for running out of money, this is a significant length of time to be in breach of his visa.

29. In relation to the hardship that may be caused to himself or to others, the applicant said that his future would be substantially hampered if he is not allowed to complete his study here and also that his father, who has largely been meeting his living and tuition expenses, would lose a significant amount of money.

30. The Tribunal accepts that the applicant’s earning capacity will be less without the Masters degree that he started. The applicant gave evidence that he expects his earning capacity to be up to about AU$7,000.00 pa with his current qualifications and between $10,000.00 and $20,000.00 with the Masters.

31. Further, in relation to hardship, the applicant said that his father had sold a house in order to finance the applicant’s study and that it would be a devastating blow for the applicant to return without his qualifications. There is no corroborative evidence that the applicant’s father has sold a house.

32. The applicant said that he was not expected to repay his father’s investment.

33. The applicant’s father provided a letter of 1 August 2017 that said that he would “… offset his school fees from my business concerns and my retirement benefits.” He does not say that he sold a house or that he would be devastated by the cancellation of the applicant’s visa.

34. There is nothing in the applicant’s past or present behaviour towards the department that suggests that his visa should be cancelled.

35. The applicant gave evidence which the Tribunal accepts, that there would not be any consequential cancellations under s. 140 in the event of cancellation of his visa.

36. If the Student visa is cancelled, the visa holder will become an unlawful non-citizen.

37. He will need to apply for a bridging visa. He may become liable to detention under section 189 and to removal under section 198 if he does not get a bridging visa or leave voluntarily.

38. Future visa grants may be compromised by the cancellation of this visa and in particular, the applicant will come within the risk factors defined in Public Interest Criterion 4013.  That will mean he will be restricted in lodging an application for another visa to Australia for 3 years after the cancellation of the Student visa.

39. There is no information before the Tribunal that shows that the cancellation would result in breach of Australia’s international obligations.

40. The Tribunal is not aware of any other factors relevant to the exercising of its discretion to cancel the visa.

41. The Tribunal has weighed the considerations set out above together. The Tribunal is not satisfied that the circumstances that gave rise to the grounds of cancellation were beyond the applicant’s control. The Tribunal finds that in the circumstances the applicant’s breach is substantial. The tribunal is not satisfied that the hardship it will be suffered by the applicant or his family is sufficient to outweigh the considerations in favour of cancelling the applicant’s visa. The Tribunal is not aware of any other relevant matters that should be considered.

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

DECISION

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

Mark O'Loughlin
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.