1614487 (Migration)

[2017] AATA 3049

1614487 (Migration) [2017] AATA 3049 (24 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1614487

MEMBER:David McCulloch

DATE:24 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2017 at 3:58pm

CATCHWORDS

Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Enrolment in a registered course – Applicant ceased enrolment – Lack of academic progress – Extenuating circumstances – Financial difficulties – Social ostracism – Credibility issues

LEGISLATION

Migration Act 1958, ss 116, 140

Migration Regulations 1994, Schedule 2 cls 573.223 and 573.231, Conditions 8202, 8516

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated [in] August 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of India born on [date]. The visa that has been cancelled was granted [in] April 2014 with a stay period of two years, 11 months and 11 days. That visa was subject to condition 8202.

3. [In] July 2016, the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from [a date in] June 2015. The applicant provided a written response to the NOICC, with supporting documentation.  [In] August 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 21 November 2017 to give evidence and present arguments. The Tribunal took evidence also from [Mr A], a friend of the applicant’s, and an assistant priest at the Sikh temple attended by the applicant.

6. The Tribunal was assisted with the use of an interpreter in the Punjabi language. The applicant was represented by his registered migration agent, who attended the hearing.

7. 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

8. 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?

9. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   • be enrolled in a registered course, or in limited cases, a full-time course of study or training: 8202(2)
   • has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
   • has been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

11. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since [a date on] June 2015. The Provider Registration International Student Management System (PRISMS) confirms this to be the case.

12. There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

13. In the Tribunal hearing, the applicant acknowledged that he had not been enrolled in a registered course from [June] 2015 until the visa was cancelled [in] August 2016.

14. 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), and the ground of cancellation is made out.

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

16. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

17. The applicant provided to the Department a response to the NOICC, with supporting documents, outlining the reasons for the breach. Further detailed submissions and supporting documents were provided to the Tribunal. Oral submissions were provided by the applicant’s representative at the end of the Tribunal hearing. Relevant submissions and documents are referred to below.

18. A relevant discretionary factor is compliance with other visa conditions. In the Tribunal hearing, the applicant  acknowledged that he had also been in breach of condition 8516, from [June] 2015 until the visa was cancelled. Condition 8516, in combination with subclauses 573.231 and 573.223(1A) of the Regulations, essentially requires, given the applicant holds a TU-573 Higher Education Sector visa, that the applicant be enrolled in, or the subject of a letter of offer in, a higher education sector course. The applicant ceased to meet this requirement when he ceased to be enrolled in a Bachelor of Business [from] June 2015.

19. Various explanatory factors have been put forward by the applicant as to why the breaches occurred. It is claimed that the breaches occurred due to extenuating circumstances beyond the applicant’s control.

20. PRISMS records show that the applicant undertook a Certificate IV in Business from [July] 2014 until [December] 2014, which continued from [February] 2015 until [March] 2015. There is a further continuation of this course from [March] 2015 until [August] 2015, but that enrolment was cancelled [in] June 2015 due to non-payment of fees. The applicant has provided Student Results for the Certificate IV in Business which show five out of seven units completed, with two units as ‘Not Yet Competent’. Submissions and supporting documents provided by the applicant indicate that he stopped studying the Certificate IV in February 2015.

21. The Tribunal is prepared to accept that the applicant was performing as a genuine student and making progress in the Certificate IV in Business until sometime in the first half of 2015.

22. The applicant was enrolled in a number of subsequent courses prior to the cancellation of the visa, all of which were cancelled. The applicant was enrolled in a Diploma of Management commencing [March] 2015 but his enrolment was cancelled [in] March 2015 due to non-commencement of studies. The applicant was enrolled in a package of courses commencing with the further Certificate IV in Business commencing [March] 2015, progressing to a Diploma of Management commencing [August] 2015, and then to a Bachelor of Business commencing [March] 2016. All of these were cancelled [in] June 2015, the date that the applicant ceased to be enrolled in a registered course, resulting in the ground of cancellation being made out. The other courses were cancelled on the basis of non-commencement of studies.

23. PRISMS indicates that the applicant was enrolled in a Diploma of Business commencing [August] 2017, which he is currently studying. The Confirmation of Enrolment indicates that enrolment in this course occurred [in] July 2017. This course is due to conclude [in] August 2018. The applicant provided to the Tribunal a transcript in relation to this course which indicates that he has achieved competency in two units.

24. The applicant provided the Tribunal with an offer letter dated [in] November 2017 in a Bachelor of Business due to commence [in] August 2018. The Tribunal accepts that this would meet the applicant’s obligation pursuant to condition 8516 that would be applicable to any TU-573 Student visa held by the applicant, requiring the applicant to be enrolled in, or the subject of an offer of enrolment in, a higher education sector course.

25. The explanations provided by the applicant as to why the breaches of conditions 8202 and 8516 occurred have shifted over time. There is internal inconsistency between some of the explanations. The Tribunal has a number of other credibility concerns with aspects of the applicant’s explanations, some of which suggest that the applicant has not been candid in his explanations.

26. The applicant provided to the Department in response to the NOICC an email dated [in] August, in his name, explaining the reasons for the breach of condition 8202.  The email indicates that, in May 2015, the applicant’s father had a heart attack leading to paralysis with other complications. This made the applicant distressed, depressed and anxious over his father’s health which interrupted his study. The applicant could not attend his class and his enrolment was cancelled. Gradually the applicant has overcome this crisis and is now well prepared to continue his study.

27. The applicant provided to the Department a report from [a] consultant psychologist, dated [in] August 2016. The report indicates that the applicant attended a clinical assessment interview at [the psychologist’s] [practice]. The report refers to the applicant being enrolled to study a ‘Diploma in Information Technology’ (sic) leading to a Bachelor in Information Technology, however he transferred to [College 1] in [a city] to complete a ‘Certificate IV in Information Technology’ (sic). The applicant was homesick and found it difficult to find work which affected him financially. This affected his concentration on studies. Assignments were unsatisfactory and he had to redo them. The applicant decided to move to [City 1] where he would be closer to friends and to improve his prospects of obtaining a job. He obtained permission from [College 1] to move to the campus in [City 1] to complete his Certificate IV. 

28. The report indicates that, in March 2015, the applicant was enrolled to pursue a Diploma in Business Management at [College 1] in [City 1]. However, in May 2015 he was informed that his father had a heart attack leading to paralysis with other complications. The applicant became distressed, depressed and anxious over his father’s health. He was also worried about his mother’s ability to cope. Although the applicant wished to return home, he did not have the funds to enable this. This caused the applicant to become anxious, depressed and highly stressed. He suffered from headaches and fatigue and lack of concentration which affected his ability to study. He could not afford to see a doctor. He stayed indoors and would not go out. He would go to the Sikh Temple to seek solace in prayer.

29. The report indicates that the applicant was asked if he had resorted to seeing a doctor, and the applicant explained that he could not afford it.  With his compromised mental health, he stayed inside and did not want to go out. He would go to the Sikh Temple for solace.

30. The report indicates the applicant has worked in Australia including roles as [an occupation] for [two companies]. However, the applicant did not work during the time of his father’s poor health. The treating doctor of the applicant’s father provided a medical report to indicate his diagnosis and prognosis which appeared to be long-term including bed rest for six months. The applicant’s father is still unwell and is unable to resume work and this has been a financial burden for the household.

31. The applicant was administered the DASS 21 – Depression, Anxiety and Stress Scale – a self-reporting questionnaire. Scores on each of the scales indicated the presence of significant levels of depression, anxiety and stress. The applicant was administered the Kessler Psychological Distress Scale from self-reporting of his mental health. The applicant score of [score] is indicative of clinically significant levels of depression and anxiety symptoms. His resilience has been compromised since his father’s near fatal heart attack and he developed psychological responses which have been detrimental to study. It is recommended that the applicant continue psychological counselling, such as within Welfare Services where he studies, or to seek out external counselling within the Cognitive Behavioural Therapy framework. He should consult with his GP if his physical health deteriorates. The report indicates: ‘With regard to his studies, consideration is recommended for his challenged levels of concentration and diminished levels of motivation as a consequence of his depression and anxiety.’

32. A medical certificate is provided dated [in] May 2015 from [a doctor in] Ludhiana (India). It indicates that, after careful personal examination of [name] (the applicant’s father), he is suffering from paralysis and diabetes and is under treatment. It is considered that at least six months of bed rest is absolutely necessary for his health.

33. In the written submission provided to the Tribunal, with the applicant being represented by a different migration agent, it is indicated that the prior agent was not competent and did not present all the reasons for the breach in response to the NOICC.

34. The submission to the Tribunal indicated that the illness of the applicant’s father also created financial impediments preventing the applicant from being enrolled.

35. In the Tribunal hearing, the applicant was shown his response to the NOICC and he indicated that he was aware of its contents at the time it was sent to the Department. The Tribunal asked the applicant if it omitted any reasons for the breach, and he indicated that it did not. However, when the Tribunal put to the applicant it had now been submitted that there were financial impediments to him being enrolled, he agreed that this was the case.

36. The Tribunal asked the applicant, if this was a significant reason for the breach, why it was not referred to in response to the NOICC. In response, the applicant indicated that it is simply a matter of common sense that financial impediments would have been a reason for the breach. The Tribunal indicated to the applicant, whilst it may not be implausible that this could have been a factor, the Tribunal would have expected the applicant to articulate this to the Department, if it was a reason.

37. The Tribunal does acknowledge that there is reference in the August 2016 report from the psychologist to the fact that, in early 2015, the failure by the applicant to obtain work created financial impediments. There is also reference to the fact that the applicant’s father not working created a financial burden for the family.

38. The applicant had provided to the Tribunal a report from [Doctor B], [Suburb 1] Medical Centre, dated [in] November 2017, indicating that the applicant had been a client for two years.  It makes reference to the applicant having an absence from college from February 2015 following the illness of his father, which also created financial issues and caused the applicant anxiety and depression. The letter indicates that the difficulties have resolved.

39. In the Tribunal hearing, the applicant indicated that he attended this GP on perhaps six or seven occasions. The applicant was vague in response to questions as to whether he was prescribed medication. He said that he was given some medication but did not seem clear what it was. It might have been headache medication. He did not take the medication every day.

40. The Tribunal asked the applicant whether he received any other medical support in addition to these GP consultations, leading up to his consultation with the psychologist in August 2016. The applicant said that he did not. The Tribunal confirmed this a second time with the applicant.

41. This appeared inconsistent with a letter that the applicant had provided to the Tribunal from from [the doctor] in India, dated [November] 2017, who indicates that he has been undertaking medical consultations with the applicant for the last one and a half years via Skype and other calls. The applicant has been given regular counselling about mental health, stress reduction and depression. He has been under medical treatment since January 2016.

42. When the Tribunal made mention of this letter to the applicant in the Tribunal hearing, the applicant indicated that he thought the Tribunal was only asking about consultations resulting in the provision of medication. As indicated to the applicant in the hearing, the Tribunal asked the applicant on several occasions open-ended questions as to the receipt of other medical advice (up until the August 2016 consultation) and the applicant indicated he had received none in addition to the consultations with [Doctor B] in [Suburb 1].

43. The Tribunal then noted to the applicant that the report of consultation with the psychologist in August 2016 indicates the applicant advising the psychologist that he had not received treatment from doctors because he could not afford this. The Tribunal indicated to the applicant that this does not appear consistent with new evidence of the applicant receiving medical treatment from an Australian GP and from a doctor in India.

44. In relation to the latter, the applicant indicated that he was mostly discussing issues with the doctor in India relating to the health of his father, with only tangential advice as to the applicant’s own problems.

45. The Tribunal finds the evidence relating to the applicant’s medical treatment unsatisfactory. The Tribunal does not think the applicant telling the psychologist in August 2016 that he had not received any medical treatment prior to that point is consistent with later claims that the applicant was obtaining treatment from a GP in Australia or from India. In the hearing, the applicant underplayed the extent to which the doctor in India was providing him with medical support, which is not consistent with the letter provided by the Indian doctor who refers to ongoing treatment over a lengthy period specifically relating to the applicant’s conditions. 

1. The letter from [Doctor B] makes reference to the applicant suffering from depression and anxiety but does not provide any details as to the treatment of the applicant for this condition or the prescription of medication. The Tribunal also notes the applicant’s vague evidence about medication which he could not name or provide a clear indication as to what it was being prescribed for.

2. The Tribunal must take at face value the supporting letter provided by [Doctor B] as to the conditions suffered by the applicant. Nevertheless, the Tribunal has concerns, for the reasons given, as to the extent to which the applicant was seeking specific and ongoing treatment, for his conditions, prior to seeing the psychologist in August 2016.

3. The Tribunal is also concerned given that the report from the psychologist in August 2016 indicates that, at that point in time, the applicant was suffering from significant levels of depression and anxiety, and difficulties in motivation and concentration. That is inconsistent with the applicant’s response to the NOICC at the same time that his issues had resolved sufficiently for him to be able to continue to study.

4. In this respect, [Mr A] gave evidence in support of the applicant that the applicant’s depression and anxiety had lasted about eight months and that he was better by the end of 2015. [Mr A] was an assistant priest at the applicant’s Sikh Temple, and got to know him from the beginning of 2015, and learned about his various difficulties and witnessed his progression through 2015 and 2016.

5. The Tribunal is concerned at the inconsistent evidence as to the applicant’s mental health conditions at various points in time.

6. The Tribunal is also concerned about inconsistent evidence as to whether the applicant was working during 2015 and 2016.  In the hearing, the Tribunal asked the applicant whether he worked during these periods. The applicant indicated that he did not. However, when [Mr A] gave evidence, he indicated that he encouraged the applicant to start working from the end of 2015, and he did so as [an occupation]. This evidence was put to the applicant, and he acknowledged that he had worked as [an occupation] from the end of 2015. The applicant indicated that he started working when he felt better. The applicant referred to the fact that he had two accidents [at work] at the beginning of 2016 and had to pay compensation which was an additional difficulty for him.

7. As indicated to the applicant in the hearing, the Tribunal is concerned as to the applicant’s overall credibility given his clear earlier evidence to the Tribunal in the hearing that he had not worked during this period.

8. In the hearing, the applicant explained further about his difficulties in being enrolled. He indicated that he failed one unit in the Certificate IV in Business. This meant that he could not progress to the Diploma course with his fellow classmates. His college told him he would be allowed to progress if he obtained an improved ILETS English score, but he took the test and got a lower score so he could not proceed to the Diploma course. The applicant indicated that these events caused him to lose his confidence and that this was a key reason for him not progressing with his studies.

9. The Tribunal put to the applicant that he had passed five of his units in the Certificate IV in Business, and had to two complete, and, therefore, what he should have done was to have continued with the Certificate IV.  The applicant indicated that he was dispirited by the fact that he could not progress to the Diploma course with his friends.

10. In the written submission by the applicant’s representative, it was submitted that the applicant was seeking to enrol in registered courses following the cancellation of his enrolment but he kept missing intake dates. This way, a few more months passed and he was making efforts in vain. As indicated above, the logical course would have been for the applicant to continue with the Certificate IV in Business.

11. The claim that the applicant was in fact looking to enrol is inconsistent with the applicant’s response to the NOICC, and his psychologist, that he was not in a mental state to study up until August 2016. It is also inconsistent with claims that the applicant was in fact looking to enrol, but that he could not afford to do so because of family financial issues.

12. The Tribunal put to the applicant that, if it were to accept that he was suffering from depression and anxiety, then he should have sought a deferral from his college on compelling and compassionate grounds. This would have meant he would have continued to have been enrolled, but could have dealt with his issues. The applicant indicated that he was not aware of such procedures.

13. It has been indicated that the previous migration agent provided incorrect advice, at the time of the cancellation of the visa, that the applicant could not study following the cancellation. Given no restriction on the applicant’s Bridging visa in terms of study, there would have been no impediment to the applicant studying. The Tribunal would ordinarily have expected the applicant to enrol and study following the cancellation of the visa if he had a genuine intention to continue as a student in Australia, including as a means to demonstrate this intention to the Tribunal.

14. The applicant has provided print-outs of text messages between himself and his prior migration agent which, it is claimed, provide incorrect information to the applicant about Bridging visas as demonstrating the incompetence of the previous agent. The applicant has indicated that when he recently received advice from his new migration agent, he was advised that he could study and therefore has now enrolled in a registered course.

15. The Tribunal has taken note of all the relevant medical reports in assessing the applicant’s claims. As indicated, the Tribunal has concerns that the medical report provided from the doctor in India is at odds with the applicant not mentioning this medical support in response to direct questions by the Tribunal and then seeking to underplay the extent of the medical support provided, as well as the fact the applicant made no mention of this medical support when asked a direct question by the psychologist who treated him in August 2016. This results in the Tribunal giving the letter from the doctor in India little weight.

16. The various matters of concern identified above result in the Tribunal not being satisfied that there were extenuating circumstances beyond the applicant’s control, for the reasons claimed, which justify either a breach of condition 8202 or 8516 for a period of 14 months. The applicant has added to the reasons for the breach initially provided to the Department in response to the NOICC.  The applicant himself made no mention of financial impediments in response to the NOICC.  It has been later claimed that financial issues were a key cause, together with claims that the applicant did in fact seek to enrol in a registered course, but was not able to do so.

17. The Tribunal is not satisfied that financial issues were a significant cause given that this was not the reason presented by the applicant to the Department in response to the NOICC, albeit that financial issues were mentioned tangentially in the session with the psychologist. There being financial impediments is not consistent with later claims that the applicant was, in fact, seeking to in enrol in courses following the cancellation of the enrolment.

18. Evidence as to medical treatment does not correlate, and the applicant substantially retracted in the hearing clear written evidence that he was receiving ongoing specific medical treatment from India. Medical evidence that the applicant was suffering significant levels of depression and anxiety as a result of the claimed issues as late as August 2016 is inconsistent with evidence by both the applicant and his witness that the situation had improved significantly by the end of 2015, including the applicant being in a position to work, and claims by the applicant that he was in fact seeking to enrol in courses but could not successfully do so.

19. To the extent that the Tribunal were to accept that the applicant was suffering levels of depression and anxiety as a result of the illness of his father, the applicant should have maintained enrolment and sought a deferral on compassionate and compelling grounds. The Tribunal considers that the applicant should have taken greater steps to make himself aware of such an option, if he were not aware, rather than to breach his visa conditions. His failure to take such steps results in the Tribunal not considering that any depression and anxiety provided extenuating circumstances beyond the applicant’s control that would justify the breaches for as long as 14 months.

20. The applicant had the ability to work as [an occupation] from late 2015, which suggests that he would have been in a position to continue to enrol and study, even accounting for two accidents that occurred [while he was at work]. The fact that the applicant was resilient enough to [work] buttresses concerns as to the severity of the applicant’s mental health conditions.  The Tribunal is not persuaded that those accidents are significant in relation to the breaches given that they were not mentioned in response to the NOICC or to the psychologist in August 2016.

21. The Tribunal acknowledges the challenges for foreign students in Australia, coping in a different environment and managing language difficulties. The Tribunal also acknowledges that obtaining appropriate migration advice can be a challenge, and that the correct advice may not always be given.

22. The Tribunal is prepared to accept that the applicant was not in a good space of mind when his father became ill in the first half of 2015 (which the Tribunal accepts) and the applicant failed a unit in his Certificate IV in Business and could not progress to the Diploma course with his colleagues. The Tribunal would be prepared to make allowances for breaches for a period of a couple of months in these circumstances, but not for the breach of 14 months that has occurred in this case. In all the circumstances, the applicant should have taken more proactive steps to maintain visa obligations and enrol in appropriate courses.

23. The Tribunal is not satisfied that the migration agent who the applicant engaged to respond to the NOICC was so deficient such as to compromise the applicant’s response to the Department, given the applicant’s clear evidence in the hearing that the explanation he provided to the Department was his explanation, and it was complete, and also given its general consistency with the explanation provided by the applicant during the consultation with the psychologist in August 2016.

24. In summary, the Tribunal is not satisfied that any of the claimed reasons, or a combination of them, were reasons, or were reasons that were extenuating and outside his control causing the breaches of conditions 8202 and 8516 for 14 months.  As indicated, even if the applicant were suffering from depression and anxiety, there was a mechanism to ensure maintenance of enrolment but give him the ability to deal with those conditions.

25. The Tribunal is prepared to accept, for the purpose of this decision only, that the applicant was given incorrect advice that he could not study following the cancellation of the Student visa. The Tribunal therefore does not draw an adverse inference from the failure of the applicant to enrol and study following the cancellation of the visa and up until him being advised of his ability to study, and his enrolment in a registered course [in] July 2017.

26. The Tribunal acknowledges that the applicant made appropriate progress as a student for his first 10 months in Australia, completing 5 out of 7 units in his Certificate IV in Business. The Tribunal notes that the applicant appears to be making appropriate progress in his Diploma of Business from August 2017. The applicant has a letter of offer in a higher education sector course and therefore would be in compliance with condition 8516 on any TU-573 Student visa held by the applicant. These are all matters favourable to the applicant.

27. The applicant and his representative have made detailed submissions as to the significant hardship to the applicant and his family in having to return to India without completing his studies, particularly given the very considerable family expectations of the applicant making good study progress. It is indicated that the applicant’s father would be devastated if he has to return. It is indicated that it will be difficult for the applicant to obtain a job, people will not trust him and he may even not be able to get married. It is submitted that the applicant and his family may be banned from entering their place of worship and ostracised socially.

28. Whilst the Tribunal accepts, particularly from a cultural perspective, the importance to the applicant and his family of him returning to India having made meaningful study progress, and that it will be a hardship to the applicant and his family if he does not do so, the Tribunal considers that there has been exaggeration in the submissions as to the hardship that will be suffered. Whilst the Tribunal is prepared to accept that there may be family disappointment, even shame, and a view by the applicant’s community that he has not achieved what he set out to in Australia, the Tribunal is not satisfied that the applicant or his family would be socially ostracised, banned from worship, or that the applicant would be unemployable or unable to get married.

29. The Tribunal accepts a hardship to the applicant if the visa remains cancelled in that this would impose restrictions on applying for various visa subclasses onshore.

30. The Tribunal has no evidence that the applicant has failed to abide by any visa conditions other than conditions 8202 and 8516.

31. There is no evidence that the applicant has acted in an adverse way towards the Department. There is no evidence that there are third parties whose visas would be cancelled consequentially upon the cancellation of the applicant’s visa.

32. In terms of mandatory legal consequences if the visa remains cancelled, in the absence of evidence to the contrary, the Tribunal is not satisfied it is likely that the applicant would be subject to mandatory detention for being an unlawful non-citizen given his ability to apply for a Bridging visa to legitimise his visa status while he makes arrangements to leave the country or pursues review or appeal processes.

33. In terms of whether the applicant faces persecution or significant harm on return to India, the applicant referred to the disapproval of his family and the community if he returned to India without completing his studies. Whilst the Tribunal accepts the potential for such disapproval, the Tribunal is not satisfied that this would rise to the level of persecution or meet the definition of significant harm for the purpose of Australia’s non-refoulement obligations.

34. There is no evidence that the interests of children in Australia would be affected by the continued cancellation of the visa.

35. Submissions and evidence have been provided of the applicant engaging in volunteer and community work, seeking to demonstrate that he is a good citizen. The Tribunal is prepared to accept that the applicant has engaged in such work and these matters are favourable to the applicant.

36. In summary, in the applicant’s favour are the facts that he has been a genuine student for his first 10 months in Australia, and is currently enrolled in a registered course and subject to an offer of enrolment in a higher education sector course. The Tribunal acknowledges the applicant’s volunteer and community work. The Tribunal acknowledges the hardship to the applicant and his family if he returns home without completing his studies. These matters weigh in favour of exercising the discretion in the applicant’s favour.

37. Balanced against those factors is the fact that the applicant has not been enrolled in a registered course and not been enrolled in a higher education sector course for a period of 14 months, breaching two visa conditions. These are breaches for a significant period. The Tribunal has not accepted the extenuating circumstances beyond his control that have been claimed such as to justify the breaches of this length. The Tribunal considers that aspects of the applicant’s evidence demonstrate that he has not been truthful, in parts, in his evidence to the Tribunal.

38. The Tribunal is not satisfied that the matters favourable to the applicant, and the hardship that he and his family will face, or any other relevant factors, outweigh the matters adverse to the applicant.

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

    DECISION

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

    David McCulloch
    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.