1501723 (Migration)

[2016] AATA 3445

1501723 (Migration) [2016] AATA 3445 (3 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ravneet Kaur Kaur
Mr Navjot Singh Grewal

CASE NUMBER:  1501723

DIBP REFERENCE(S):  BCC2014/2743123

MEMBER:Sean Baker

DATE:3 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 03 March 2016 at 11:43am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 30 January 2015 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the delegate found the applicant had breached condition 8516 which was attached to the applicant’s 573 Higher education sector visa, and found that the factors against cancellation did not outweigh those in favour of cancellation and cancelled the 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. The applicant provided a copy of the delegate’s decision with his application for review.

3. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the second named applicant.

4. The applicants appeared before the Tribunal on 29 February 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

6. 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

7. A visa may be cancelled under s.116(1)(b) if the Minister or the Tribunal is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 attached to the applicant’s visa. This condition specifies that the holder must continue to be a person who would satisfy the criteria for the grant of the visa.

   Does the ground for cancellation exist?

8. The Departmental decision identified that the Notice of Intention to Consider Cancellation (NOICC) was sent to the applicant on 24 October 2014. The Departmental decision sets out that on 2 July 2012 the applicant satisfied the primary criteria for the grant of the 573 visa and met cl.573.231 or cl.573.223(1A) to be granted the visa. These clauses require the applicant to be enrolled in a bachelor or master degree course, or enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. (In these reasons I may refer to such courses as ‘higher education’).

9. According to the delegate’s decision, the departmental systems indicated that the applicant at the time of the NOICC was no longer enrolled in a bachelor or master degree course and was therefore not an eligible higher degree student and was not enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. I discussed this with the applicant at the hearing and she said that she had studied her Bachelor of Health Science at Deakin University until mid- 2013, and had then changed to a Bachelor of Business at Stott’s College. She did one semester and left this course to do her Certificate III and Diploma in Hospitality. She indicated that Stott’s college cancelled her enrolment in the Bachelor of Business on March 2014, and that she did not hold enrolment or a valid letter of offer until October 2014, when she again enrolled for the Bachelor of Business at Stott’s college.

10. On the basis of the evidence before it the Tribunal finds that the applicant was not enrolled in a bachelor or master degree course after her enrolment was cancelled by Stott’s college in March 2014 until she re-enrolled in the Bachelor of Business at Stott’s College in October 2014. I asked if she had held a valid letter of offer for a Bachelor or Masters course between these times but she said she had not. On the evidence before the Tribunal, for this period of time she was not an eligible higher degree student, nor was she enrolled in, or the subject of a current offer of enrolment in, a course of study that is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under r.1.40A. The Tribunal finds that the applicant therefore did not continue to satisfy cl.573.231 or cl.573.223(1A), and therefore did not continue to be a person who would satisfy the criteria for the grant of the visa for this period. The Tribunal finds that the applicant therefore breached condition 8516.

11. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

12. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

13. The applicant provided a submission to the Department, in which she said that she had arrived in Australia in July 2012 with the intention of pursuing her higher degree in Bachelor of Health Sciences at Deakin. She completed two semesters but was unable to pass any units. She did not have much knowledge about SVP and non-SVP providers, her intention had been to gain a higher degree and meet the expectations of her parents. She applied for a course change in July 2013 and got admission to Stott’s College in a Bachelor of Business. She commenced study but found the course very academically driven. She had been working part time in the hospitality sector and the intricacies of the same excited her to enter into the exciting world of hospitality. She applied for admission with ACE in a certificate III, IV and Diploma of Hospitality leading to a Bachelor of Business with Stott’s College. She stated her aim was to focus on boosting her career prospects with practical skills and knowledge in the hospitality sector and gain a competitive edge in the career market. Her intended courses in hospitality and business will provide her with practical employment related skills to get equipped in the highly competitive and demanding hospitality industry, while developing a broad awareness and understanding of the industry. She states that she changed course after more than 6 months in her principal course due to academic difficulty and this change was made prior to the education awareness campaign of January 2014. She states that she was enrolled and maintained condition 8516. She stated she had no immigration history. With the submission the applicant supplied enrolments in a certificate III, IV and Diploma in Hospitality from ACE, created in January 2014. She had earlier provided an enrolment for a Bachelor of Business from Stott’s, created 29 October 2014.

14. As well as a copy of the delegate’s decision, the applicant provided a submission to the Tribunal, in which she explained her educational background in health subjects in high school and says that she was a brilliant student and achieved a high distinction in Year 12. Her dream was to become a dietician. She got good marks but they were not enough to get admission in a reputable Indian University and so she enrolled in a Bachelor of Health Sciences at Deakin. On reaching Australia she realised that Australia has a very different lifestyle, culture and social life and it was a culture shock for her.  She married her boyfriend so that he could give her moral support. She changed to a Bachelor of Business, and after working in a restaurant, to a certificate III and Diploma of hospitality and put her Bachelor of Business on hold so that she could complete her Hospitality course first and then later complete the Bachelor of Business.

15. She states that she changed from her Bachelor of Health Sciences for seven reasons; the study pattern in Australia is different to that she is used to, she was alone here without support and could not concentrate, she was studying for more than 5 hours each day but still unable to pass and this destroyed her self-confidence, she did not want to become a dietician anymore but to open her own restaurant chain in India, she enjoys cooking, therefore she enrolled in cooking and after this she wants to study business, studying business will enable her to understand the operations and management of business. and she has developed a keen interest in the area and requests that she be allowed to finish study in this area before she returns to India. The applicant then went on to say that she had made an honest silly mistake and admitted that she was without a Bachelor Confirmation of Enrolment (CoE) from March 2014 until October 2014, but wanted to stress that there was no intention of not studying at the Bachelor level, wishing to study Business as this was her second option but found the course academically driven and got interested in hospitality, and tried to fit her Diploma of hospitality in before she finished her bachelor of Business. Due to her ignorance she only obtained an offer letter and CoE in October 2014. There was a delay in accepting the offer and obtaining the enrolment which is now costing her her future.

16. The applicant set out her responses to the primary decision, requesting that the discretion be exercised not to cancel the visa. She states that her purpose in travelling to and staying in Australia was for the purposes of further study in the field of medicine and science. Due to her ignorance after she moved to the Bachelor of Business, she did not extend her Bachelor of Business CoE and it was cancelled, but she then rectified her mistake and obtained a CoE for the Bachelor. She also set out that she accepts she was without a Bachelor level CoE between July and October 2014, but states that she always wanted to study that course, after completing her hospitality course.  She sets out that if her visa is cancelled she will suffer hardship, as it is likely she will not be able to achieve any educational outcome in Australia, this will cause her direct and indirect financial hardship, due to stress to her family, who have invested a great sum of money in her, and if she returns to India she will not be able to get into studies as there is a lot of competition, she was not able to get in when she was younger and now it has been a long time and she has wasted a year here. If she returns with no education, she will have to start from the beginning, it is very hard for her as a mature aged student in India and the pattern of studies is different as well, her career will be ruined and she will be considered a failure.

17. At hearing the applicant provided a statement of attainment indicating that she had achieved a number of competencies for the certificate III in commercial cookery.

18. At hearing I discussed with the applicant her study history. She said that her study at Deakin was really hard, she faced many difficulties and was working hard, studying 5-6 hours a day, but failed in all her units. She said she then moved to the Bachelor of Business at Stott’s College in mid-2013. I asked why she had chosen this course and she said that she had consulted many agents and they told her that this was a good course. I asked if she had studied in the business field before and she said she had not. I asked what her plan had been after completing the Bachelor of Business. She said that she wanted to open a restaurant in India. I asked where specifically and she said in her home city of Ludhiana. I noted that there were many restaurants in Ludhiana. She agreed, she said that she would have to do something special, like Indian food and English food as well. I asked what she meant by English food and she said like Italian, two or three cuisines. I asked how she was going to do this and she said after studying the Bachelor of business she will be able to understand business, and after her Diploma of Hospitality she can handle the kitchen as well. I asked what her parents did and she said they did not have a background in business but were both doing government jobs in India. I asked what subjects she had enrolled in in 2014 and she said in a Certificate III and a diploma of hospitality at AC College. I asked why she considered she needed a Bachelor of business to open her own restaurant. She said because she had no knowledge of business. I asked her what specifically in the bachelor of business would help her open her own business and she said that if she gets the bachelor it can help her understand the basic level of business. I asked her what thinking she had done about the bachelor. She said it would help her with the business. I asked what area of the bachelor of business she would focus on, what would be her major. She said she did not know. I read to her from the Stott’s college Bachelor of Business prospectus.[1] She said she would major in management. I asked her why management and she said that in setting up a business she needed to manage all aspects of the business. I read to her from the prospectus which talks about planning, leadership, organising and controlling a business organisation to successfully attain its goals, and I noted that I was not sure that this major fitted with her plan to open a restaurant in Ludhiana. I asked her why she needed to study business to the Bachelor level, rather than a certificate or Diploma which might be more appropriate for her claimed future plans. She said that she needed the Bachelor as she was a subclass 573 visa holder. I asked if this was the reason and she said it was. I noted that this concerned me because it may indicate that she only said she wanted to do the course in order to comply with conditions, not because she had any genuine intention to study at the higher education level. I explained that I considered this a significant consideration because we were discussing whether her subclass 573 higher education visa should be reinstated, which required her to be a genuine student, studying at the higher education level. She said that she genuinely wished to study this course.

    [1]

19. I have had regard to her evidence at hearing, the evidence of her husband and the submissions. I accept the applicant’s reasons for wanting to change from her Bachelor of Health Sciences at Deakin, but it is at this point that I have concerns with her claims. As I noted to the applicant at the hearing on several occasions, I consider it very relevant to the consideration of the discretion whether the applicant has a genuine intention to study at the higher education level, given that this is the purpose of the visa subclass she is seeking to have reinstated. From her responses at the hearing I am unable to discern a genuine intention to study the Bachelor of Business, or any other course at the higher degree level after this time. She was unable to clearly explain how she would be able to successfully undertake the Bachelor course having apparently failed the last time she attempted it. More concerning, she was unable to provide more than vague details about her semester of study at Stott’s in the Bachelor of Business from mid-2103. I find this very concerning, and I find that this indicates she did not, as claimed, focus on her studies, attend classes and submit assessments at that time. Further, she struggled to identify why the Bachelor course is relevant to her claimed future plans. All of these responses from the applicant lead me to the conclusion that at some point she ceased to hold a genuine intention to study at the higher education level and she does not now hold a genuine intention to study at the higher education level, and I find that her intention was to comply with her visa conditions only. If the visa were to be reinstated, I have no confidence after our discussion that she would in fact undertake higher studies. I give this factor significant weight towards the visa being cancelled.

    The purpose of the visa holder’s travel to and stay in Australia

20. I asked the applicant her purpose in coming to and staying in Australia. She said at that time she wanted to come here to be a dietician so that then when she went back to India it would help her, as she is very interested in the medical stream, and her parents wished her to pursue this. I accept that this was her purpose on coming to Australia, and give this some weight in her favour.

    The extent of compliance with visa conditions

21. I asked the applicant if she had complied with other conditions on her visa. She said she had. I asked if she had attended class and met academic requirements. She said she did not pass all subjects in her Bachelors. I asked if she meant her Bachelor of Health Science or Business and she said both, she also did not pass subjects in her Bachelor of Business. I asked if she had completed the one semester of her bachelor of business from mid 2013 to end 2013. She said she had completed the semester. I asked how many subjects she had passed. She said she did not pass any of the four subjects she attempted in the semester. I noted that I had further concerns that I may not be able to have any confidence that she could go on and attempt the Bachelor of Business now and pass subjects, given this. She said that now she would be able to pass subjects.

22. I asked her what subjects she had done in her Bachelor of Business in the second half of 2013. She said she was unable to remember. I noted I was further concerned that she had done a semester of the Bachelor of Business and she could not tell me the names of the subjects. The applicant said it had been some time in the past. I asked if she had been to the classes. She said she had. I asked if she had submitted assignments. She said she had. I asked if she had gone to the exams and she said she had not. I noted that I accepted that it was a little over two years ago, but I was not asking her to tell me the content of the courses or what was studied at each lecture, but just the names or a description of the courses. After some time she said that one was accounting, one was management, and one was formations of business. She said she did not remember the fourth one. I noted that I was concerned that she had failed her subjects and did not seem to know very much about them despite claiming to have gone to these courses. I asked again why she believed she needed to do this course. She said that she had to do this course as she had no knowledge of business, she had to do it for business.

1. I then asked her about her compliance with other conditions. I asked how often she had worked at the Indian restaurant. She said 10-15 hours per week. I asked if she was working there now and she said she was not.

2. I asked if she had been aware in January 2014 that she needed to maintain enrolment in a bachelor course. She said she was not aware of the rules at that time, but she understood she had breached the condition. I noted she had enrolled at that time only in vocational courses and asked whether she had applied for a vocational stream, 572 visa at that time. She said she didn’t know she had to apply for a vocational level visa. I noted that she had said before that agents had been giving her advice. Her agent noted that he believed that before she had been referring to education agents, not migration agents. I indicated that I may accept this and may consider that the breach in this case was not intentional, which may weigh in her favour, but I noted that I would need to weigh this against my serious concerns already discussed.

3. I accept that the applicant’s technical breach of condition 8516 was not intentional, in the sense that had the applicant been aware that she was required to maintain enrolment in a bachelor level course she would have done so. However, I consider that she would have done this with the intention of only maintaining her visa conditions, not because she was or was genuinely engaged with her study of the Bachelor of Business at Stott’s in the second half of 2013. I find that her evidence indicates that she did not attend classes and submit assignments, as she could tell me very little about the subjects or course. Whilst I make no determination on her compliance with attendance and course progress requirements, on the basis of her evidence on this factor I have further concerns that go to the applicant not holding a genuine intention to study at the higher education level. I consider that in this case the period of the breach, and what I can discern of the underlying reasons for the breach are significant, and I give this some weight towards the visa being cancelled.

   The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

4. I asked the applicant about the circumstances around the breach, beginning in March 2014. I asked if she considered that the breach was for reasons beyond her control. She said she had enrolled in the Certificate III and Diploma but had forgotten to take a CoE for the Bachelor of Business as well. I noted that at the time she enrolled in these courses, she was still enrolled in her bachelor of Business at Stott’s. She said it was cancelled in March 2014, and she was not aware of the rules and regulations. I asked what conversations she had had with Stott’s. She said that she had told them she had to do the diploma and showed them the offer letter and they gave her permission to change. I asked if this were the case why they had cancelled her visa. She then said that she had spoken to Stott’s on the phone. I asked what they had said. She said they had told her they would cancel the CoE. I asked her if they had then sent her a letter. She said they had emailed her about the cancellation of her Bachelor of Business CoE. I asked what the letter had said. She said that it had said that ‘it may cause the 573 conditions.’ I noted that I understood this to mean that the letter from Stott’s had indicated to her that the cancellation may have an effect on her 573 visa conditions. She indicated that this was the case. I asked, given she had received this information from Stott’s at that time, what had she done about her visa at that time. She said she had not known she needed to do anything. I noted that it appeared the letter had made it clear that there may be an issue with her visa after the cancellation. I asked if she had contacted the Department about her visa at that time. She said she had not. I noted that she had then only re-enrolled in the Bachelor when she had received the NOICC. She said no, she had re-enrolled in the Bachelor of Business at Stott’s when she got the email asking for her name and address, before they sent the NOICC. I confirmed that she meant the email to confirm her address to send the NOICC. I asked what had made her get the enrolment then. She said she had discussed it with one of her friends, and he told her she had breached conditions of the visa, and then she got the CoE in in October 2014.

5. I asked if she had a current letter of offer for a Bachelor or Masters course. She said she did not. The representative indicated that they could get one shortly after the hearing. I noted that that was not the point, and asked, since the visa had been cancelled, what had the applicant. She said she had applied for study and work rights but they did not give to her. She said as her Certificate III only had one month to go she had spoken to ACE about doing the rest of the course and they had agreed, and then the certificate IV and Diploma. I asked if she had spoken to Stott’s recently about the bachelor of business course. She said she had not.

6. I have had regard to the applicant’s evidence and the submissions. On the evidence I do not accept that the breach here was beyond her control. I further find that the applicant was made aware of the potential for her to be breaching her conditions by Stott’s when they cancelled her enrolment, but she took no action, and only re-enrolled in a Bachelor course once she became aware that the Department of Immigration were intending to send her correspondence. I further find that the applicant has not taken any significant steps to ensure that she could undertake the Bachelor of Business in the future, were the visa to be reinstated, which I would consider reasonable for someone claiming to have an intention to do a package course and undertake studies at the higher education level. I do not accept that in this case there are any extenuating circumstances, and find that the applicant could have taken steps to avoid or ameliorate the breach, and I give this some weight towards the visa being cancelled.

   The degree of hardship that may be caused to the visa holder and any family members: decision-makers should assess whether the visa holder is, or any family members are, likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision  

7. I asked the applicant about any hardships that she or her family may experience if the visa were cancelled. She said that if she had to go back to India, she could not do anything, there was a gap in her studies, and she is now 23 and would have to start from the beginning. She said it would make a very difficult life for her and her husband. I asked could she not open the restaurant she was talking about. She said that she did not get any knowledge of business so it would straight away become a loss. I asked if she could work in that industry. She said that there was no chance as she could not get a job as a kitchen hand in India, as they always need experience. I noted that she had experience in Australia and she said that that was only for 7-8 months. I asked if her husband had been working here and she said he was only doing deliveries, he is doing a newspaper job. She said there would be emotional hardships as well, as her parents had pinned their hopes on her. She said they are both government officers and wanted her and her brother to do something. I asked what her brother was doing and she said that her brother had got a visa this month to study a Bachelor of Accounting.

8. I have had regard to the applicant’s evidence, the evidence of her husband, and the submissions. I accept that they will face some financial and emotional hardship if the visa remains cancelled. I do not accept on the evidence before me that the applicant or her husband would be unable to work or study in India. I appreciate that the applicant may not be able to enter a prestigious university, but she was unable to do so before coming to Australia. I do not accept that the study gap will preclude her from studying, but accept she may have to do some bridging or further studies. I find that the evidence before me does not indicate that there will be severe or significant hardship to the applicant, her husband, or their families, and I give this only little weight towards the visa not being cancelled.

   The visa holder’s past and present behaviour towards the Department (for example, whether a person has been truthful in statements or co-operative in their dealings with the Department)

9. From the information before me it appears that the applicant has been cooperative and as far as I can determine truthful in her dealings with the Department and Tribunal. I give this some weight towards the visa not being cancelled.

   Whether there are persons in Australia whose visas would, or may, be cancelled under s.140

10. I explained to the applicant’s husband why, in my assessment, I may not have jurisdiction to review his case as his visa appeared to have been cancelled under s.140(1) as a consequential cancellation by operation of law, and the Tribunal did not have jurisdiction to review such cases. He indicated that he understood. I noted that I would have regard to the fact that his visa had been consequentially cancelled however. I note this fact, and I accept that if the cancellation is affirmed, he will also suffer some hardships. However, as above, I do not assess these as severe or significant to him, his wife or their families. I give this consideration only little weight towards the visa not being cancelled.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

11. I asked the applicant’s if there were any reasons they could not return to India. the applicant’s husband said that there was a big gap in his wife’s studies and it would be very hard if they went back and they could not do anything there. The applicant said her reasons were the same. The applicant did not raise any other matters that indicated that this was an issue and I find on the evidence before me that there would not be any breach of any obligations under relevant international agreements and I find that this factor is not relevant.

    The impact of cancellation on any victim of family violence, or if family violence is a factor

12. The applicant did not raise any matters that indicated that this was an issue and I find this factor is not relevant.

    Whether there are mandatory legal consequences to a cancellation decision, such as:

    ·     whether indefinite detention is a possible consequence of the cancellation decision , if a person cannot be removed from Australia consistently with Australia’s non-refoulement obligations 

    ·     whether there are provisions in the Act which prevent the person from making a valid application for a visa without the Minister personally intervening (for example, s46A, s46B, s48, s48A, s91E, s91K and s91P of the Act) and

    ·     whether, upon cancellation, the person would become an unlawful non-citizen (unless the person holds another visa that is in effect) and liable to be detained under s189, and liable for removal under s198.

13. I asked the applicant what she and her husband would do if the visa were to remain cancelled. She said that they had no rights to live here, so they would have to go back to India. Whilst I accept that the applicant and her husband may become unlawful non-citizens and liable for detention and removal, I find that the applicant’s evidence indicates that they would choose to depart Australia and return to India. The applicant and her husband would only have capacity to apply for a limited range of visas if the visa remains cancelled, but the applicant did not indicate that they would seek to do so. Given her response, I give this factor little weight towards the visa not being cancelled.

    Any other relevant matters

14. I asked whether there were any other matters they wished to raise. The applicant’s husband raised an issue addressed in the applicant’s submissions, her stress when studying. He said that when he had come from India he had realised that due to study she used to live with a lot of stress. Due to stress she could not devote much time and was struggling to understand, and due to stress she was not eating anything and he advised her to change course. I asked the applicant if she had been to a doctor or other health professional about her stress and she said she had not. I accept the applicant may have been stressed. I have some sympathy for this. However, on the evidence before me I do not accept that this leads to extenuating circumstances, or explains or excuses the actions and what I can discern of the applicant’s intentions, and I give this no weight.

15. The applicant’s representative made a submission, stating that the applicant was of the understanding that she needed to do a Bachelor of Business to run her business. He said that she wants to do a big business. He said that she was very young when she came here and got married very young and this put responsibility on her.  He noted that she could not remember much about her Bachelor of Business study but she had been out of it for more than a year. He said that if she had to return to India she would have incomplete qualifications, if she had to return there would be a social stigma that will attach to her and family and she will find it difficult to go back to that environment. I asked what social stigma he was referring to. The representative said that the applicant has been married, and neither she nor her husband has obtained qualification. She would feel she had failed in India and Australia if she returns with no qualifications. I have had regard to the submissions, but I do not find that they are persuasive. I am not persuaded by these general claims that the applicant or her husband or their families will suffer any social stigma on return. I note that the representative and submission claimed that the applicant wished to run a big business. the applicant did not herself give evidence of this at hearing, and I am not persuaded that this forms part or a significant part of her future plans, nor that even if I accept this, it explains why she claims to wish to do the Bachelor of Business but can tell me little about the detail of what she hopes to gain from it, or what she did or gained from the semester of the bachelor of Business she did at Stott’s. I do not accept this claim.

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

17. As noted to the applicant and her husband, the evidence makes clear that the second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa, and I so find, and find that as no decision was involved, I have no jurisdiction in relation to the second named applicant.

    DECISION

18. The Tribunal affirms the decision to cancel the first named applicant’s Subclass 573 Higher Education Sector visa.

19. The Tribunal has no jurisdiction with respect to the second named applicant.

    Sean Baker
    Member