1507299 (Migration)

[2016] AATA 3934

1507299 (Migration) [2016] AATA 3934 (16 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Thanaset Keeratipongwat

CASE NUMBER:  1507299

DIBP REFERENCE(S):  BCC2014/2793849

MEMBER:Bruce MacCarthy

DATE:16 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 16 May 2016 at 9:45am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 May 2015 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant is not a genuine student. 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 10 May 2016 to give evidence and present arguments.  The applicant was represented in relation to the review by his registered migration agent.

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. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(fa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

6. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

7. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

8. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

   The applicant’s migration history

9. The Department’s records indicate that the applicant first arrived in Australia on 11 February 2012, as the holder of a Subclass 573 Student visa granted on 29 December 2011.  That visa was valid until 28 June 2014.  On 1 July 2013, he was granted a Subclass 572 Student visa, which is the visa which was later cancelled.  While holding that visa, he made 2 journeys outside Australia, as follows:

   ·from 16 March to 19 April 2014; and

   ·from 27 January to 27 February 2015.

10. Following the cancellation of his visa, the applicant has remained in Australia with a Bridging visa.  None of the conditions attached to this visa prevent the applicant from studying.

    The applicant’s academic history

11. According to the decision under review, a copy of which the applicant provided to the Tribunal without comment, PRISMS records show that the applicant undertook a Certificate III in Tourism course at the Australian College of Vocational Studies (ACVS) between 14 and April 2014 and 27 March 2015, and then had 2 enrolments, at the same educational institution, in Advanced Diploma of Tourism courses.

12. PRISMS records seen by the Tribunal indicate that the applicant has had 10 enrolments in courses of study in Australia.  These were

    ·an English Language Programs (Beginner to Advanced) course scheduled to run at Greenwich English College (Greenwich) between 5 March and 22 June 2012.  The applicant had enrolled in this course on 21 December 2011 and, according to PRISMS, he finished this course.

    ·a Certificate IV in Academic English course scheduled to run at Greenwich between 2 July and 21 September 2012.  The applicant had enrolled in this course on 21 December 2011 but the enrolment was cancelled on 7 August 2012 because the applicant did not commence studies. 

    ·a General English (Elementary to Upper Intermediate) course scheduled to run at the Kingsway Institute (Kingsway) between 13 and August and 24 August 2012.  The applicant had enrolled in this course on 8 August 2012, and he finished this course.

    ·a second English Language Programs (Beginner to Advanced) course scheduled to run at Greenwich between 24 September and 14 December 2012.  The applicant had enrolled in this course on 7 August 2012 and he finished this course.

    ·a Master of Management (International Business) course scheduled to run at Central Queensland University (CQU) between 22 October 2012 and 28 April 2014.  The applicant had enrolled in this course on 22 December 2011 but the enrolment was cancelled on 29 October 2012 because the applicant did not commence studies.

    ·an IELTS Preparation (Intermediate to Upper Intermediate) course scheduled to run at Kingsway between 25 February and 8 March 2013.  The applicant enrolled in this course on 22 February 2013 and he finished this course.

    ·an Advanced Diploma of Tourism course scheduled to run at ACVS between 15 April 2013 and 15 April 2015.  The applicant enrolled in this course on 15 April 2013, but the enrolment was cancelled on 21 January 2014 because of “Non--commencement of studies.” 

    ·an Advanced Diploma of Tourism course scheduled to run at ACVS between 15 April 2013 and 15 April 2015.  The applicant enrolled in this course on 11 February 2014, but the enrolment was cancelled on 9 March 2015 because of “Changed to a course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original.” 

    ·a Certificate III in Tourism course scheduled to run at ACVS between 14 April 2014 and 27 March 2015.  The applicant enrolled in this course on 9 March 2015 and he finished this course.

    ·an English Language Programs (Elementary to Advanced) course scheduled to run at Macquarie Education Group (Macquarie) between 11 May and 22 May 2015.  The applicant had enrolled in this course on 8 May 2015 but the enrolment was cancelled, presumably as a result of the cancellation of his visa.

    A summary of these enrolments is at folio 42 of the Tribunal’s file and more detailed information is at folios 25 to 41 inclusive.  The Tribunal gave a copy of the summary to the applicant at the hearing.

13. As discussed with the applicant at the hearing, the fact that a course is shown in PRISMS records as having been “finished” does not necessarily mean that the student concerned completed the course successfully.  It simply means that, as at the scheduled end date of the course, the student concerned was still enrolled in that course.  This is illustrated by the fact that, having finished his first English language course on 22 June 2012, the applicant enrolled in a second course of the same kind approximately 2 months later. 

14. The applicant advised the Tribunal that he did not pass any of the units of his Tourism courses at ACVS, including the Certificate III course shown in PRISMS as “finished” although there is evidence in the Department’s file (see folio 15) that he did successfully complete 1 unit out of 14 attempted. 

15. However, the Tribunal accepts that the applicant reached an “Intermediate” standard of English in the course which commenced on 5 March 2012, though the certificate of attainment and attendance issued by Greenwich in relation to that course states that the course ended on 27 April 2012, whereas the course was supposed to run until 22 June 2012.  On the basis of evidence submitted to the Department, the Tribunal also accepts that the applicant qualified for the award of a Certificate IV in Academic English at Greenwich in late 2012. 

    The notice of intention to consider cancellation

16. The Department issued a notice of intention to consider cancellation of the applicant’s visa (“the notice”) on 20 March 2015.  That notice is at folios 55 to 57 inclusive of the Department’s file.  The notice referred to information from PRISMS and information received from ACVS in relation to the applicant’s studies at ACVS.  This information is reproduced on pages 2 and 3 of the delegate’s decision record.  The notice was accompanied by documents from ACVS from which the information mentioned in the notice was obtained.  In summary, the notice stated that, based upon information regarding the applicant’s poor attendance and unsatisfactory course progress at ACVS, and the fact that he had yet to successfully complete a course since his Subclass 572 visa was granted, it appeared that the applicant’s primary purpose for holding a student visa was not for the purpose of study and that, as such, it appeared he was not a genuine student.

17. At the hearing, the Tribunal asked the applicant if the notice was not valid for any reason.  He did not claim that it was invalid and there is nothing to suggest that the notice did not comply with the requirements of s.107 of the Act. 

18. The notice invited the applicant to respond, and his migration agent did so on his behalf by letter dated 3 April 2015.  At the hearing, the applicant confirmed that his agent’s response had been translated to him and that he agreed with its contents.  The response was accompanied by a number of documents.  The text of the agent’s response and details of the attachments are set out on pages 2 -4 of the delegate’s decision record.

19. In brief, the agent said that the applicant had decided to enrol in an Advanced Diploma of Tourism course in March 2013.  He had done so because his older brother was a chef in a hotel in Thailand and thought that the applicant had a skills in language and customer service.  He encouraged his brother to undertake an English language courses and, if he achieved a suitable level of English, to study marketing or tourism so that he could be employed in a hotel or resort on return to Thailand.  The agent said that that, because of changes in regulatory requirements, ACVS had been required to enrol students in a new course commencing in the second term of 2014.

20. The agent said that, although the applicant had requested leave to return to his home country in March 2014 for the surgical removal of a wisdom tooth, ACVS recorded the applicant has been absent and did not take into account the fact that he was on leave.  However, the applicant returned to his course and went to school as normal soon after he arrived back in Australia.  Then, he began to have recurring back pain in May 2014 and this impacted upon his ability to study.  He provided information relating to the applicant’s back conditions and evidence that he had informed a teacher at his college about an absence in July 2014.  He said the applicant returned to Thailand for treatment between January and February 2015. 

21. At the hearing, the Tribunal discussed information from ACVS regarding the applicant’s attendance and warnings issued to him, in accordance with the provisions of s.359AA of the Act.  Much of this information had been given to him by the Department, but the Tribunal gave the applicant copies of the documents at folios 16 to 27 inclusive of the Departments file and referred to information contained in those documents.  The information indicates that he was given formal written warnings about poor attendance in May 2013 and October 2013 which was well before he experienced the dental problems to which his agent’s response had referred. 

22. Further, while the attendance records show that he was marked as absent for some of the time in the period from 16 March to 19 April 2014 when he said he was overseas, they also show that he was absent for significant periods immediately before that time and immediately afterwards.  In 2014, prior to his departure from Australia, the records show that he attended on only 11 of the 34 days on which classes were held.  That is an attendance rate of less than 33%.  In the period of 6 weeks after his return to Australia on 19 April 2014, he was recorded as attending on only 5 of the 28 days on which classes were held.  That is an attendance rate of only 18%.  Moreover, although he was overseas for a period of just over a month, he was marked as absent on only 10 days in that period, the first being 17 March and the last being 28 March 2014.  Whether that means there were no classes from 29 March to 21 April inclusive or whether it means he was given leave for that period, the fact remains that his attendance in the early part of 2014 was very low. 

23. Even if the 10 days of classes while he was overseas were regarded as days actually present his attendance in 2014 up until the end of May would still only have been 26 days out of 72 days, a rate of only 36%.  The Tribunal said that this information was relevant because it suggests that his dental problem was not a significant cause of his poor attendance in early 2014.  The Tribunal said that, given that there is no evidence to suggest that his dental problem caused him to miss classes before he returned to Thailand for treatment or after he returned to Australia following at that treatment, if it were to accept the information it had outlined, it may conclude that his poor attendance and poor performance did not relate to his dental problems in any significant way.  This in turn may lead it to conclude that he is not a genuine student.

24. When invited to comment on this information and reminded of his right to seek more time in which to do so, he elected to respond immediately.  He said that approximately a month after his [Subclass 572] visa was granted in July 2013, he started to have fights with his boyfriend which resulted in them breaking up in August 2013.  He said this caused him to be depressed and he found it hard to concentrate on his studies.  He said that he had wanted to return home that his mother persuaded him that he should start to continue his studies but, by then, his enrolment was cancelled.  Although he persuaded ACVS to readmit him, he then had his dental problems and returned to Australia to find that his enrolments had been altered because of changed rules.  This confused him and he was further depressed because he was no longer in a class with his former classmate.  Later still, he had his back problems.

25. The Tribunal pointed out that, when he responded to the notice, he made no mention of him having personal difficulties with the former boyfriend or of any depression, whether associated with such difficulties or otherwise.  The applicant said that he had not mentioned this in his response to the notice because he had not wished to talk about it because it upset him so much.  The Tribunal has considered this explanation, but does not accept it.  At the time he responded to the notice, he did so with the assistance of his registered migration agent.  Had he had any emotional problems which contributed to his poor attendance the Tribunal would have expected him to have mentioned that in the response sent on his behalf.

26. The Tribunal finds that his claims at the hearing of emotional difficulties in the latter half of 2013 and early 2014 have been fabricated in order to explain the poor attendance which was evident before the dental problems.  Given that, even if he was given credit for the days he missed as result of seeking dental treatment in Thailand, his attendance in 2014 up until May would have been less approximately 36%, as explained above.  This is less than half the generally accepted standard of 80% for satisfactory attendance. 

27. The Tribunal also discussed with the applicant his attendance from May 2014 onwards, in the context of his back difficulties.  His agent’s submission referred to him having developed recurring back pain at some time in May 2014, but the evidence he submitted indicated that it had not caused the applicant to be absent from school until sometime in June 2014 and that was not until July that he had particular problems.  The Tribunal said that it accepted, on the basis of a certificate issued by a chiropractor [see folio 62 of the Department’s file] that he was unable to attend classes from 18 to 27 July inclusive.  It also accepted, on the basis of the medical documents submitted that he had medical consultations on 18 and 19 December 2014 and that he was receiving treatment for his back condition in Thailand between 27 January and 27 February 2015. 

28. However it drew his attention to information from the material provided by ACVS (given to him earlier in the hearing) which would be part of the reason for affirming the delegate’s decision, in accordance with the provisions of s.359AA of the Act.  The Tribunal pointed out that the attendance records showed that, from 1 June 2014 until 26 January 2015, the day before he left Australia on the second occasion, he attended classes on only 34 of the 104 days on which classes were scheduled.  This is an attendance rate of only 33%.  The Tribunal said that, even if it were to regard the 5 days of classes in the period from 18 to 27 July inclusive as days he attended, his attendance would still have only been 39 days out of 104, which is less than 38%.  The Tribunal said that the records showed there were no classes in December 2014, so his inability to attend on 2 days in the month because of medical consultations did not affect his attendance.  The Tribunal said that, even if it were to add in the 9 days of classes on and after 27 January 2015 and regard them as days attended, his attendance rate would only climb to 48 days out of 113, still less than 43%.

29. The Tribunal pointed out that that information was relevant because it suggests that his poor attendance was not primarily attributable to your back problems either.  While it acknowledge the point made in his response to the notice that that he did not attend classes on days when he felt unable to do so, the only medical evidence he had submitted is the chiropractor’s certificate relating to 5 days in July, the evidence of medical consultations in December and the evidence of his medical treatment in Thailand.  There is nothing in those documents which would suggest that his medical problems were so severe as to prevent him from attending classes other than in July 2014 and possibly in early 2015.  The Tribunal pointed out that the medical certificate from Thailand suggests he was only an in-patient on two days, namely 24 and 25 February 2015.  The Tribunal said it may conclude from this that he did not need to be away from Australia, and therefore from classes, for a month.  Moreover, the certificate from Thailand dated 25 February 2015 states that you had back pain and leg pain for 6 months, that is to say since approximately late August 2014.

30. The Tribunal said that, if it were to accept the information in the attendance records, in the context of the medical evidence he had provided, it may decide that his overall poor attendance and performance was not significantly impacted by his back condition.  It may conclude that his poor attendance as mentioned in the decision record is an indication that he is not a genuine student. 

1. When invited to comment on this information and reminded of his right to seek more time in which to do so, the applicant again elected to respond immediately.  He said that his back problem affected him so severely that there were times when he could not even walk.  He said that, while the chiropractor’s treatment gave him a temporary assistance, it was not long lasting.  He said that he had spoken to teachers about the problem and had tried to send assignments by email, but he was told he had to submit assignments in person, and that effectively his teachers ignored him.  He provided evidence which suggested that he had submitted a number of assignments by email, but nothing in the documents submitted in support of his assertion that the college would not accept them.  He also submitted evidence that he had contacted a teacher in July 2015 to explain his absence in the previous week.  However he did not submit any evidence to suggest that he had advised ACVS that been absent for medical reasons at any other time. 

2. The Tribunal has considered that the applicant’s explanation but is of the view that, if he had been absent for medical reasons on any other occasion [for example if there had been other times when “he could not even walk”], he would have submitted relevant medical evidence to his college in connection with any such other absences as he had in connection with his absence in July 2014.  The Tribunal accepts that the applicant had some back problems which required medical, or para-medical, treatment on the occasions covered by medical certificates he has submitted.  However, it does not accept that he was absent for medical reasons on other occasions not covered by medical certificates.  It finds, on the basis of the evidence before it, that the applicant’s attendance was not significantly affected by that medical treatment given that, if it had not been required, his attendance would still have been unacceptably low.

3. There was information in the delegate’s decision record as provided to the Tribunal by the applicant that ACVS  have told the Department that the applicant failed to achieve satisfactory course progress and his tourism course.  The Tribunal asked the applicant if he wished to make any comment about that.  He said that his previous comments about attempting to submit assignments by email were appropriate.  The Tribunal has considered this but notes his oral evidence that he did not complete any course units.

4. At the hearing, the Tribunal asked the applicant what he had been doing since his last course of study ended approximately 12 months previously.  He said he mainly stayed at home doing housework, but undertook paid employment to help him cover the costs of his rent.  He said he thought he was not able to study because his visa had been cancelled.  However, in accordance with the provisions of  s.359AA of the Act, the Tribunal drew his attention to the fact that his Bridging visas issued since the cancellation of his Student visa did not prevent him from studying any course of study.  The Tribunal said that this information was relevant because his failure to study in circumstances when there was nothing to prevent him doing so, could suggest that he was not a genuine student. 

5. When invited to comment on this information, the applicant again elected to respond immediately, he said that he had made a mistake in not enrolling in further courses.  He had thought that he was not able to study and had not read the details of his bridging visa.  The Tribunal has considered the applicant’s response, but is of the view that, if he were a genuine student, he would have sought to explore all opportunities for study in Australia and would not have neglected to read the details of his bridging visas.  The Tribunal believes he would not have remained in Australia for a year without undertaking any study if he were a genuine student..

6. Evidence in the PRISMS records shows that, although the applicant had completed 4 English language courses in 2012 and 2013, including a course leading to the awarding of a Certificate IV in Academic English, he had enrolled in a further English language course in May 2015.  The Tribunal discussed this information with the applicant in accordance with the provisions of s.359AA of the Act.  This information is relevant because the fact that he had achieved a reasonable level of English as a result of his earlier studies suggested that he would have had had no need to enrol in such a low level course which ran for only 11 days.  If the Tribunal were to accept that information, it may conclude that he only enrolled in the most recent course in order to create the impression that he genuinely wished to study in Australia.

7. When invited to comment on this information and reminded of his right to seek more time, the applicant responded immediately.  He said that, at that stage some time had passed since his previous studies in English, and he felt his English language had not improved because he had spent so much time talking with friends from Thailand.  He said he wanted to practise his English and improve his level of proficiency.  The Tribunal has considered this explanation, but does not accept it.  As discussed with him, the course was of very brief duration and at a relatively low level in comparison with his earlier studies.  Moreover, if this were the case, the Tribunal would have expected him to have also enrolled in some course relevant to his Subclass 572 visa as required by Condition 8202, which is a mandatory Condition applicable to such visas.  However, he acknowledged at the hearing that he had no further enrolments in any course of study other than the English language course in May 2015. 

8. The applicant had an overall poor level of attendance in his studies at ACVS, and he only completed one course unit during those studies.  While the Tribunal accepts that he had medical and dental problems in 2014 and 2015, for reasons stated above, the Tribunal finds that these problems did not significantly impacted upon his overall poor performance.  The Tribunal has rejected the applicant’s claim at the hearing that his early poor attendance was the result of depression arising from a relationship breakup.  Given his poor level of attendance, he is failure to complete more than one course unit in those studies, and his failure to undertake any study since May 2015, the Tribunal is satisfied that the applicant is not a genuine student, or is likely not to be one. 

9. In reaching this conclusion, the Tribunal has considered the matters prescribed in r.2.43(1D) for the purposes of s.116(1A) of the Act as set out in the attachment to this decision. However, there is no evidence to suggest that the applicant’s participation in any course of study has been deferred or temporarily suspended by the provider of that course of study for one of the reasons mentioned in r.2.43(1D), or indeed for any other reason.

10. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) 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

11. 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’.

    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

12. The applicant first came to Australia in February 2012, at which time he was enrolled in a number of English language course and a Master of Management (International Business) course scheduled to run at Central Queensland University (CQU) between 22 October 2012 and 28 April 2014.  The applicant told the Tribunal that he wants another chance to complete a qualification in Australia in order to make his mother proud of him.  However, while the applicant has had enrolments in other courses of study, his attendance and lack of course progress at ACVS, and other factors discussed above, have lead the Tribunal to conclude that the applicant is not a genuine student.  In these circumstances, the Tribunal does not believe the applicant has a compelling need to remain in Australia.

    The reason for, and extent of, any breach of a visa condition

13. The delegate’s decision record indicates that the applicant has not breached any visa conditions.  However, as discussed with the applicant in accordance with the provisions of s.359AA of the Act, there is evidence that the applicant has breached Condition 8202 of his visa.  Specifically, the PRISMS records show that there were 4 periods when he  was not enrolled in any registered course of study, as follows:

    ·from 15 December 2012 [the day after his 4^th English language course ended] to 21 February 2013 [the day before he enrolled in an IELTS preparation course at Kingsway] - a total of 69 days;

    ·from 9 March 2013 [the day after his IELTS preparation course ended] to 14 April 2013 [the day before he first enrolled in an Advanced Diploma of Tourism course] - a total of 36 days;

    ·from 22 January 2014 [the day after his first enrolment in an Advanced Diploma of Tourism course was cancelled] to 10 February 2014 [the day before he enrolled for the second time in such a course] -a total of 20 days; and

    ·from 28 March 2015 [the day after his Certificate III in Tourism course ended] to 7 May 2015 [the day before he enrolled in an English language course] - a total of 41 days.

    Moreover, the Department’s records show that he held a Subclass 573 visa which was initially valid until 28 June 2014, but was replaced by a Subclass 572 visa on 1 July 2013.  PRISMS records show that the applicant’s only enrolment in a course appropriate for Subclass 573 was cancelled on 29 October 2012. 

14. The Tribunal pointed out that this information is relevant because it shows that there were 4 periods when the applicant had no enrolment at all in any registered course of study, and that there was a period of about 8 months, from 30 October 2012 to 30 June 2013 inclusive when he did not hold any enrolment in a course appropriate to Subclass 573.  This period, completely subsumed the first 2 periods when he had no enrolment at all.  The Tribunal pointed out that, if it were to accept this information, it would conclude that there were periods totalling approximately 10 months when he were not complying with Condition 8202 of your visa.  This would be an adverse factor in any consideration of whether or not your visa should be cancelled. 

15. When the Tribunal invited the applicant to comment on this information and reminded him of his right to seek time in which to do so, he did not seek more time.  He said he believed that he was always enrolled in a package of courses at one college, but the Tribunal pointed out that one of the gaps was between the ending of his enrolments at Greenwich, and the commencement of his enrolment at Kingsway.  He also suggested that he may have been overseas for some of the time.  Even if this were true, the fact remains that the applicant was not enrolled in any course of study appropriate to the student visa he held the relevant time on a number of occasions, and was therefore in breach of Condition 8 202 of his visa.  The Tribunal regards this as an adverse factor mitigating in favour of cancellation.

    The degree of hardship that may be caused

16. The Tribunal recognises that, the cancellation of the visa will mean that the applicant will have to return to his home country without having obtained any substantive qualification other than a Certificate IV in Academic English.  However, having concluded that the applicant is not a genuine student and is not likely to be a genuine student, the Tribunal does not believe that this situation will amount to hardship for the applicant.

17. The Tribunal accepts that, if the applicant has to return home without any further qualification, he may cause disappointment to his mother.  However, the Tribunal does not consider this to be a factor to which much weight should be given in the overall analysis of relevant factors.

    The circumstances in which the ground for cancellation arose

18. The applicant has asserted that much of his difficulties arise from his medical problems.  While the Tribunal accepts that the applicant has had a medical problems, it does not accept that these significantly contributed to the applicant’s poor attendance and poor academic progress and the other factors which lead the Tribunal to conclude that he is not a genuine student.  The Tribunal has rejected the claims he made at the hearing that he had emotional difficulties arising from a breakup in a relationship.

    The applicant’s past and present conduct towards the Department

19. The Tribunal is not aware of any adverse conduct towards the Department on the applicant’s part.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

20. The applicant is currently in Australia with a bridging visa.  Cancellation of the visa may result in the applicant being unlawful in the event that a further Bridging visa is not granted and he remained in Australia.  In such hypothetical circumstances, he may become subject to detention.  However, there is no evidence before the Tribunal to suggest that, in such circumstances, he would remain indefinitely in detention. 

21. The applicant has not claimed that, in the event of cancellation, there are any provisions in the Act which would prevent him from making a valid visa application without the Minister’s intervention and in the circumstances of the present case, the Tribunal is not aware of any such provisions. 

    Whether there would be consequential cancellations under s.140

22. There is nothing to suggest that any other person’s visa would be cancelled under s.140 if the applicant’s visa were to be cancelled.

    Whether any international obligations would be breached as a result of the cancellation

23. There is nothing to suggest that any of Australia’s international obligations would be breached as a result of the visa being cancelled.

    Any other relevant matters including matters raised by the visa holder

24. The Tribunal is not aware of any relevant matters other than those discussed above.

    Conclusion

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

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Bruce MacCarthy
    

    Member

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.