OZOEMENA (Migration)

[2019] AATA 3927

OZOEMENA (Migration) [2019] AATA 3927 (13 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr GEORGE NWADINUKWE OZOEMENA

CASE NUMBER:  1706383

HOME AFFAIRS REFERENCE(S):           BCC2017/130178

MEMBER:Wendy Banfield

DATE:13 June 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2019 at 1:07pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector visa – enrolment in a registered course – applicant ceased courses – alleged failure of college to notify applicant – family health issues – financial hardship – decision under review affirmed         

LEGISLATION

Education Services for Overseas Students Act 2007, s 20
Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8; Condition 8202

CASES

Wei v Minister for Immigration and Border Protection [2015] HCA 51          

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

   Background

2. The applicant is a citizen of Nigeria and is currently 40 years old. He came to Australia on 27 October 2011 as the holder of a Subclass 572 Student Visa. Since he arrived in Australia the applicant has completed some courses of study up to Diploma level. In 2016 the applicant had enrolled in Diploma of Leadership and Management but did not commence the course and his enrolment was cancelled.

3. The delegate cancelled the visa on the basis that the applicant was not enrolled in a course of study from 28 January 2016 to 10 February 2017 as required by the conditions 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.

   Evidence of the visa applicant

4. The applicant submitted the following evidence to the Tribunal prior to the hearing:

   ·     Written statement by the applicant’s representative dated 1 April 2019;

   ·     The applicant’s resume;

   ·     Certificate and transcript for an Advanced Diploma of Business dated 17 January 2019;

   ·     Evidence of enrolment and payments to Sydney School of Business and Technology;

   ·     Copy of a previous decision of the Tribunal concerning cancellation of a Student Visa dated 2 July 2018;

   ·     Evidence of the Applicant’s previous studies in English and Community Service;

   ·     Copies of previous COE’s including for a Diploma of Leadership and Management at Australian Academy of Commerce from 11 January 2016 to 7 January 2018;

   · Copy of a High Court decision Wei v Minister for Immigration and Border Protection [2015] HCA 51, 17 December 2015;

   ·     Overseas Student Health Certificates in the name of the applicant;

   ·     Receipt for $1500 for payment made to Australian College of Vocational Studies dated 23 March 2018;

   ·     Death Certificate and associated documents, including funeral photos in relation to the death of the applicant’s mother in 2017;

   ·     Copy of a letter dated 24 November 2017 from the applicant to the Australian Institute of Vocational Studies requesting an extension of his COE.

   ·     Commonwealth Bank deposit receipt dated 18 August 2015 in the amount of $1400;

   ·     Statutory Declaration of the applicant (undated).

5. The applicant provided evidence to the Department that has been taken into account in this decision. The submissions included evidence of previous studies, a medical certificate dated 20 February 2017, a letter of offer for enrolment in an Advanced Diploma of Business at Australian College of Vocational Studies dated 22 February 2017, and a representative’s submission dated 23 February 2017.

6. The applicant appeared before the Tribunal on 8 May 2019 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

   The hearing

8. The applicant gave evidence at the hearing that he arrived in Australia in 2011 and completed studies in English and Community Services. The applicant had enrolled in a Diploma of Leadership and Management that was due to start on 11 January 2016 and finish on 7 January 2018. According to his evidence, the applicant received information from Nigeria that his mother was sick so he called his education provider on 5 January 2016 to advise them of this. The applicant said he was not able to study from 11 to 29 January 2016 because he could not concentrate and had to call his family when it was night time in Australia. The applicant advised that his mother died on 16 May 2017. The applicant said he has not been back to Nigeria since he first came to Australia in 2011. He said he did intend to go and see his mother but on 30 January he went to the college to tell them about his situation and why he had not attended. The Tribunal asked what resulted from this visit and he said he went to tell them his reasons for not attending. He said he had enrolled, paid his fees and had Overseas Student Health Cover. The Tribunal asked again what the college’s response had been and he said they did not give him any response.

9. The Tribunal asked how the applicant was planning to resume his studies since he had missed the start of the course. He said he had intended to go but did not have enough money then because he was sending money to his family for hospital treatment. The applicant said he works in community support and pays for his own rent and expenses.

10. The Tribunal gave the applicant a copy of the Provider Registration and International Student Management System (PRISMS) record that showed the applicant’s enrolment in a Diploma of Leadership and Management that was due to start in January 2016 was cancelled. The applicant’s representative made submissions at the hearing and in writing that the applicant continued his studies and the education provider did not “update the information” in accordance with their obligations. The Tribunal asked for clarification and the representative claimed the college was under a legal obligation in accordance with s.20 of the Education Services for Overseas Students Act 2007 (ESOS Act) to inform the applicant about attendance. The applicant referred to a High Court case submitted in evidence in this regard. He also referred to a case before the Tribunal and repeated that the education provider has an obligation to update PRISMS as it is the basis of the Department’s decision. The representative said it was agreed the applicant did not attend the course but referred again to the ESOS Act and the provider’s obligation to inform the applicant. The applicant and his representative said no notification had been received from the education provider about the applicant’s failure to start the course.

11. The representative directed the Tribunal again to the High Court case submitted in evidence but the Tribunal noted that case concerned an education provider who did not update PRISMS when an applicant had been enrolled to study. The Tribunal accepted the applicant in the current case had been enrolled; however, his enrolment was cancelled for non-commencement of studies. The representative said the delegate’s decision was affected by jurisdictional error because the requirements under s.20 of the ESOS Act had not been followed by the provider. The Tribunal reiterated that the cases cited by the representative were not the same facts and that in the applicant’s case; PRISMS clearly recorded the applicant’s enrolment and the cancellation of that enrolment. The Tribunal asked the representative to explain how PRISMS was incorrect in the applicant’s case. In response, the representative said the COE is his confirmation of enrolment issued by the provider, the applicant paid the fees, and it was only from 11 to 29 January that he did not go. The representative then said the fees were not refunded when he attended on 30 January 2019.

12. The representative referred the Tribunal to the Department’s decision record dated 28 March 2017 and specifically the part that states: Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that George Nwadinukwe Ozoemena has not been enrolled in a registered course of study since 28 January 2016. The representative again claimed PRISMS had not been updated in accordance with the provider’s obligation to do so within 14 days. The Tribunal advised the representative he had been shown a copy of PRISMS that clearly records the applicant’s enrolment and cancellation of that enrolment. The representative stated again that the applicant only failed to attend between 11 and 29 January but did go on the 30^th. The representative continued to insist that PRISMS had not been updated within 14 days and that the applicant had not been informed he was not attending as required. The representative then claimed the applicant did not discontinue to his studies and began to discuss his previous course in Community Services, his mother’s illness that caused him hardship and the alleged failings of the education provider that caused the applicant to suffer.

13. The applicant’s representative insisted the applicant had continued his enrolment but appeared to be referring to the period after a Notice of Intention to Consider Cancellation was issued by the Department. He then requested that all of the applicant’s circumstances be taken into consideration in considering his application for review.

14. The Tribunal accepted the applicant’s purpose in coming to Australia was to study. He said he had a compelling need to stay in Australia because since he came he has been always enrolled in his courses and never had an issue with payment, attendance or submission of assignments. Regarding any hardship that may result if his visa is cancelled, the applicant said he does not have peace of mind because he lost his mother and his visa has been cancelled. He said since then he has completed an Advanced Diploma of Business and is studying an Advanced Diploma of Leadership and Management. He has approval to study a Graduate Diploma of Management that will be completed in August 2020, after which the applicant said he plans to go on to a Bachelor degree. He outlined his previous studies and work in community services. The applicant agreed that during the time he claimed he was not able to study he was still employed as a community worker because he had to pay for his daily needs.

15. The applicant advised there were no consequential cancellations. The Tribunal then explained to the applicant the legal consequences of cancellation and the applicant said it would be great loss for him. He said he would be affected mentally, physically and psychologically. The applicant advised he does not have children who would be affected by visa cancellation.

16. In conclusion, the representative said the applicant’s mother sold property to pay for his education. He said the applicant’s aim is to get a Bachelor’s degree but to begin with his English was not good enough. Now he has improved and if he can do a degree and also wants to study a Master of Business Administration. He said in Nigeria the family have a pharmacy. The applicant was asked why he wants to study an MBA and he said it will help him in future, possibly doing community work. The applicant concluded by saying that he had lost his mother and his father is also sick. He said if he returns to Nigeria now his father may die and he wants to continue his studies and achieve his aim. He said he has recently paid fees in relation to his studies and resumed studying through his own efforts while waiting for his Tribunal hearing. Both the applicant and his representative referred to the applicant’s current course of study which he is undertaking in Sydney.

    359A letter

17. In response to the representative’s claims that the education provider had breached the terms of the ESOS Act by not contacting the applicant about his failure to attend his course, the Tribunal contacted the Australia Academy of Commerce (AAC). AAC was asked to provide details of written notice given to the applicant regarding his having breached a prescribed condition of his student visa by not commencing his course. AAC provided evidence of relevant communications sent to the applicant. On 28 May 2019 the Tribunal wrote to the applicant inviting him to comment or respond to the following information:

    In your representative’s written submission dated 1 April 2019 and during the hearing on 8 May 2019 it was claimed your education provider in 2016, the Australian Academy of Commerce (the Academy) did not send any notice to you of any breach of visa conditions. The Tribunal contacted the Academy and they have provided evidence of three separate emails sent to you on 4, 12 and 19 January 2016. The email of 4 January is a welcome letter advising you that orientation would be on 6 January. The emails of 12 and 19 January are reminders that you are required to attend orientation and registration. Both of these emails state “Failure to attend will result in cancellation of your COE”.

    This information is relevant to the review because your representative claimed in his written submission that you did not receive any assistance or cooperation from your education provider “in updating PRISMS or refunding his tuition fees”. In fact, the email notifications provided to you from the Academy are in line with the cancellation of your enrolment on 28 January 2016 for non-commencement of studies.

    If the Tribunal relies on the information indicating you were appropriately informed that your enrolment would be cancelled if you did not attend your course, it may lead to the decision under review being affirmed.

18. The Tribunal’s letter attached copies of the emails from AAC that had been sent to the applicant at the relevant time.  The applicant responded through his representative and submitted a statutory declaration. In his response the applicant denied he had received email notification from AAC. He claimed to have told AAC over the phone about his family crisis and his inability to attend college for 2 to 3 weeks but did not indicate what advice he was given or AAC’s response. He had not submitted any independent evidence of having informed AAC of his reasons for not attending or of having sought a period of leave. He claimed he went to the college on 30 January 2016 to register for his course but the college would not assist him.

19. In the representative’s response it states: “the compliance procedures undertaken by the education provider regarding counselling of the applicant’s short period of absence in the institution due to his emotional hardship, fulfilling his registration obligation in an enrolment program, warning of visa cancellation without counselling and later on reporting to the Department for visa cancellation by the education provider was not justifiable to meet the natural justice rule in making an administrative decision in this particular matter”.

20. 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

21. 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?

22. 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).

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

24. The Tribunal has considered the applicant’s claims regarding cancellation of his enrolment in a registered course. The Tribunal is satisfied the applicant was enrolled in a Diploma of Leadership and Management that was due to commence on 11 January 2016. However, the applicant did not attend at the commencement of the course or on dates he was asked to attend by the college which were included in email communications sent to him. As a result, his enrolment was cancelled on 28 January 2016. Although the applicant denied being informed about his absence and that his enrolment may be cancelled, the education provider AAC provided evidence that they had communicated with him on three occasions about course dates and need for him to attend and register. Two of the emails specifically state that failure to attend will result in cancellation of the COE. The applicant has not provided any independent evidence of having informed AAC that he would be unable to start the course on the appointed date due to his mother’s illness. 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

25. 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 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

26. In this case the Tribunal accepts that the applicant’s original purpose in travelling to and staying in Australia was to study.

27. The applicant was invited to make submissions regarding any compelling need to remain in Australia. During the hearing the applicant claimed that in the past he has always enrolled in his courses and never had an issue with payment, attendance or submission of assignments. The representative’s submission dated 31 May 2019 stated the applicant is endeavouring to build a career in his home country after completing his education but no further details were included. However, the applicant advised during the hearing that he still wants to study a Graduate Diploma, a Bachelor degree and an MBA. When asked why he wants to study to that level, the applicant’s response was vague but he said he may work in community services and also, his family owns a pharmacy in Nigeria.  The Tribunal assessed the claims put forward in considering whether the discretion to cancel the visa should be exercised. The applicant’s submissions relate to his claims of having complied with the requirements of a Student Visa in the past and his plans for the future. The Tribunal notes the applicant has already completed studies and has work experience in the field of community services. The Tribunal considers the applicant’s evidence does not demonstrate a powerful or convincing reason for needing to stay. For these reasons, the Tribunal does not give any weight to the applicant’s claims and is not satisfied he has a compelling need to remain in Australia. 

    ·     the extent of compliance with visa conditions

    The applicant failed to maintain enrolment in an approved course of study which is a fundamental breach of a student visa and weighs against the applicant in this case.

    ·     degree of hardship that may be caused (financial, psychological, emotional or other hardship)

1. During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of his visa being cancelled. The applicant said he does not have peace of mind because he lost his mother and his visa has been cancelled. He later claimed his father is also sick and if he returns to Nigeria now his father may die. The applicant said cancellation of the visa will affect him mentally, physically and emotionally.

2. The Tribunal acknowledges the cancellation of the visa may cause a degree of hardship and would mean that the applicant would not be able to continue to study in Australia. However, no independent evidence was submitted to support the applicant’s claims about his father being unwell. In addition, the Tribunal is not satisfied the applicant’s assertion that his father may die if he returns to Nigeria is accurate or truthful. For these reasons, the Tribunal has given only limited weight in favour of the applicant in assessing whether the discretion to cancel the visa should be exercised.

3. The Tribunal is takes into account that the cancellation of the visa means the applicant would have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, this is an intended consequence of the legislation and does not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

   ·     circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

4. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student Visa but did not continue enrolment in an approved course of study for a period of more than 12 months, from 28 January 2016 to 10 February 2017 when the Department issued a Notice of Intention to Consider Cancellation. In responding to the Notice, the applicant conceded through his then representative that he had not complied with his student visa conditions. He said this was because he was unable to receive adequate financial support from home due to his mother’s illness and treatment. During the Tribunal hearing the applicant advised he had intended to start his Diploma course but was sending money to his family for hospital expenses. According to a resume submitted in evidence the applicant has been employed as a disability support worker since 2014.

5. The applicant had provided a medical certificate to the Department dated 20 February 2017 that states the applicant “had to drop out of academic program for the whole of 2016” because his mother’s ill-health meant he could not concentrate. The applicant did not provide independent evidence of having requested or applied for compassionate leave from AAC in January 2016. In his statutory declaration dated 29 May 2019 the applicant repeats his claim that he contacted AAC by phone in early January 2016 about his reasons for not attending college “for a few days.”  He does not say what the result of that alleged phone conversation was.

6. In written submissions and at the Tribunal hearing the applicant’s representative made claims about the circumstances in which the grounds for cancellation arose. These included: that the education provider had not updated PRISMS as they are legally obligated to do; the education provider did not inform the applicant about the consequences of his non-attendance and the education provider did not offer the applicant any assistance or counselling. During the hearing the applicant was shown a copy of the PRISMS record that clearly lists his enrolment in a Diploma of Leadership and Management that was due to start on 11 January 2016 and the cancellation of that enrolment on 28 January 2016 for non-commencement of studies. The applicant’s representative insisted during the Tribunal hearing that PRISMS had not been updated and this amounted to jurisdictional error when the Department’s made its decision. In support of this claim, a High Court case[1] and a previous Tribunal decision[2] was submitted. The Tribunal considered this evidence but as advised during the hearing, the facts in those cases were not the same as the applicants. In the two cases cited, the applicants had been enrolled and studying but the education providers did not submit the information for inclusion in PRISMS.

   [1] Wei v Minister for Immigration and Border Protection [2015] HCA 51.

   [2] Droguett Fredes (Migration) [2018] AATA 2390.

7. Since PRISMS did record the applicant’s enrolment and cancellation of enrolment, the Tribunal has surmised from the representative’s submissions that he is claiming AAC did not update PRISMS to reflect the applicant’s contention that he contacted them by phone in early January and advised he would not be able to study for a short period due to his mother’s illness. The Tribunal accepts the applicant’s mother was ill in 2016 and that she passed away in 2017. However, the applicant did not provide satisfactory evidence to demonstrate he applied for compassionate leave from AAC and was only able to make an oral assertion that he made a phone call prior to the start of the course. There is no evidence of any written request or of AAC having granted him compassionate leave. For this reason AAC was not in a position to offer the applicant any counselling or assistance. This is consistent with the applicant’s original response to the Department and statements in the Tribunal hearing in which he advised he withdrew from study for the whole of 2016 because he no longer had financial support from his mother and was helping his family in Nigeria with medical expenses. At that time the applicant did not make any claims of having advised his education provider he was unable to attend the course.

8. The Tribunal does not accept AAC failed to inform the applicant of his non-attendance and the consequences that may result. AAC provided written evidence of emails sent to the applicant on three separate occasions. The Tribunal is not satisfied there was any failure on the part of AAC or jurisdictional error affecting the Department’s decision in the applicant’s case.

9. The Tribunal has considered the circumstances in which the grounds for cancellation arose and is not satisfied they were due to a relationship breakdown or circumstances beyond the applicant’s control. For these reasons, the Tribunal finds the circumstances in which the cancellation arose as submitted by the applicant weigh against him in relation to the Tribunal exercising its discretion to cancel the applicant’s visa.

   ·     past and present behaviour of the visa holder towards the department

   There is no evidence to indicate the applicant has not cooperated with the Department and the Tribunal has given this some weight in favour of the applicant.

   ·     whether there would be consequential cancellations under s.140

10. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

11. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequence of the legislation and do not weigh in favour of the applicant in the Tribunal’s discretion to cancel the applicant’s visa.

    ·     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

12. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations including non-refoulement and the best interests of children.

    ·     if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

13. The Subclass 573 Student Visa is not a permanent visa.

    ·     any other relevant matters

    The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant remained onshore for an extended period without being enrolled in an approved course of study in breach of visa conditions. The applicant undertook employment during the period when he was not studying to assist his family in Nigeria. This was not the purpose for which the Student Visa was granted and the Tribunal finds it weighs against the applicant in the Tribunal’s assessment of whether to exercise the discretion to cancel the visa.

    Conclusion

14. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that the majority of considerations weigh heavily against the applicant. The Tribunal finds the length of time the applicant has spent in Australia having breached his visa conditions to be significant. The Tribunal considers it appropriate in this case to exercise the discretion to cancel the visa.

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

    DECISION

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

    Wendy Banfield
    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.