1707812 (Migration)

[2019] AATA 4956

1707812 (Migration) [2019] AATA 4956 (20 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1707812

MEMBER:Meredith Jackson

DATE:20 June 2019

PLACE OF DECISION:  Brisbane

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 20 June 2019 at 11:27am

CATCHWORDS

MIGRATION – cancellations – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – course enrolment – loss of parents – lack of intention to study – non-payment of fees – no jurisdiction for other applicants – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

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

Summary

1. This is an application for review of a decision dated 4 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant, [Mr A], a citizen of Pakistan, was granted a student visa on 25 June 2015 with a stay period until 23 August 2017. The visa was issued in order for him to undertake study in Australia. The delegate cancelled the visa under s.116(1)(b) of the Act, because the holder had not complied with a condition of the visa. Specifically, that he had not complied with 8202(2)(a) of condition 8202, which requires that he remain enrolled full-time in a registered course.

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 other visas were 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. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4.    In this review, the Tribunal must decide whether the ground for cancellation is made out, and if so, whether the proper exercise of its discretion requires the visa to be cancelled.

5.    [Mr A] appeared before the Tribunal on 30 May 2019 via video link to give evidence and present arguments.

6.    The applicant’s registered migration agent did not attend the hearing.

7.    [Mr A] advised the Tribunal that he was fasting for Ramadan but was “perfectly alright” to give evidence.

8.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

Evidence before the Tribunal

9.    The delegate’s decision, which [Mr A] gave to the Tribunal in the review, recorded the following:

i.On 23 March 2017 [Mr A] was notified of the intention to consider cancellation (NOICC) and the notice invited him to respond in writing;

ii.On 29 March 2017 [Mr A] responded by email to the department’s NOICC;

iii.In his response to the NOICC, [Mr A] provided reasons why he failed to comply with his visa conditions. However he did not dispute there are grounds for cancellation. Reasons stated in the response included: his grief and stress after his mother’s death in August 2016, which he said had hindered his studies on return to Australia; His father’s illness and death in February 2017 which meant the loss of his parents’ support, which he had always relied on; he was still in grief and did not expect fully to recover from the events; he apologised to the department for not studying and sought two weeks to complete his studies.

iv.[Mr A] had suffered personal issues and depression after his parents’ deaths but he did not provide evidence that he is experiencing a significant and ongoing mental health condition that prevented him from studying;

v.[Mr A] had not demonstrated his intention to study, he had failed to study for seven months, a substantial period;

vi.It appears that [Mr A] may not have complied with s116(1)(b) breach of condition 8202 which was imposed on his visa;

vii.Specifically [Mr A] had not complied with 8202(2)(a) of condition 8202;

viii.Paragraph 8202(2)(a) states the visa holder meets the requirements if the visa holder is enrolled in a registered course;

ix.The response to the NOICC did not mitigate the visa breach; it remained [Mr A’s] responsibility to be aware of his visa conditions and maintain enrolment;

x.[Mr A] had not been enrolled in a registered course of study since 18 August 2016;

xi.[Mr A] was not enrolled for a cumulative period in excess of seven months and had remained in Australia on a visa that was granted for the purpose of study;

xii.The delegate considered the extent of [Mr A’s] non-compliance to be significant;

xiii.[Mr A] stated in his application for the visa that the purpose of his travel to and stay in Australia was to study;

xiv.There was no other evidence before the delegate that provided a reason not to cancel the visa;

xv.Based on the information before the delegate, grounds for cancellation existed;

xvi.While [Mr A] requested a chance to continue his studies, the delegate was not satisfied he had demonstrated an intention to study;

xvii.[Mr A’s] response to the NOICC, overall, did not mitigate the breach and the responsibility to be aware of his visa conditions lay with him;

xviii.[Mr A] has been cooperative with the department;

xix.[Mr A’s] children would not be separated from their parents by the cancellation; there was no information before the department indicating that cancellation would breach Australia’s international obligations;

xx.Based on the information before the delegate, the delegate was satisfied there was a ground for cancellation for a breach of condition 8202.

xxi.The delegate was satisfied that grounds for cancellation do exist under s.116(1)(b) for non-compliance with condition 8202 and therefore decided to cancel the visa.

Documents provided to the Tribunal

10.      [Mr A] provided to the Tribunal:

i.Academic transcripts related to his studies in Australia and in Pakistan;

ii.Evidence from a doctor related to his father’s health;

iii.Evidence related to his communications with [School 1] on behalf of his daughters;

iv.Evidence of communications with his migration agent regarding his bridging visa status, including a copy of an email dated 15 February 2018 in which his agent indicates that bridging visas are granted automatically when a review application is lodged; and a further email in which the agent, in effect, suggests [Mr A] speak to the department directly about his issue;

v.Evidence of communications with education providers regarding his status and that of his daughters;

vi.Evidence of an email sent to [University 1] on 7 February 2018 about his wish to re-enrol in [Course 1].

The hearing

11.      The Tribunal, under section 359AA of the Act, referred [Mr A] to information about him held in the Provider Registration and International Student Management System (PRISMS) and explained its relevance in that the information in the database might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal outlined the information in the database, which captures a chronological record of an applicant’s academic history in Australia: information about enrolments, commencements, cancellations and finalisations. The Tribunal said it had not made up its mind about the information. The Tribunal referred to the information during the hearing and [Mr A] was invited to comment on it. The Tribunal asked him if he wished to seek further time to consider it. [Mr A] said he was prepared to comment on the information immediately after it was read to him and said he understood it and why it was relevant to his case.

12.      [Mr A] stated in the hearing:

i.The PRISMS record is substantially correct but he was not aware he was once enrolled in an [Course 2];

ii.His educational background is [Course 3[ from [a university] in Pakistan in [year] and [Course 4] from [another university] in [year];

iii.Before he left Pakistan his younger brother was in Australia while he ran the family business in his home country;

iv.The family decided he should improve his skills by studying in Australia and doing a [course], then progress to [Course 5]; he studied English first and completed;

v.He had not missed a single class of [Course 1], although he was struggling with [ Subject 1], but otherwise he was studying well, his father was supporting him, “everything was good”;

vi.He did not complete [Course 1] because when his visa was about to expire in 2014 he went to a [City 1] migration agent who recommended he transfer to [Course 6] which would give him a better future in Australia or even in Pakistan; however he cancelled this course after a semester, having again experienced difficulty with [Subject 1];

vii.He completed [Course 2] in [year] and enrolled in an [Course 5].

viii.He last studied [Course 5] in August 2016;

ix.He did not dispute that he was not enrolled after August 2016; he had to take a break for family reasons but did not know at the time that he had to go and see someone about the changes in his circumstances;

x.His father had taken ill and become paralysed (evidence supplied that this was around [November] 2013); this affected him profoundly because his father was his sponsor and biggest supporter; he had already brought his wife and daughters to Australia by then and he did not realise he would suffer all the things that happened to him as a consequence; rent and bills and living costs in Australia are not like India, things are easy there in a combined family system and his father had been the main provider; now he had to step into that role; his brother was also in [City 2] where he is a citizen now.

xi.He was studying in [City 1] to lower tuition costs but the travel was very hard; after his father became ill he told his wife they should return home but she said she wanted to stay in Australia with their daughters; he told his migration agent it was difficult to study and support his family at the same time;

xii.His migration agent had advised him to just do diploma courses so he could have a break of sorts but would be legally in Australia, then in a few months he could switch back to [another course];

xiii.He had no advice from his agent that he couldn’t switch study levels from higher education to vocational education because it would breach his visa conditions;

xiv.He then applied for a further visa to complete [Course 5] in [City 1]; in an interview he told the department he wanted to complete [Course 5] and go home and get a reasonable job and take care of his daughters;

xv.Fees at [City 2 University] were too high which is why he studied in [City 1];

xvi.He was enrolled for the first semester of [Course 5] and then needed to return to Pakistan to help his parents and attend to his brother’s marriage;

xvii.All the problems started then, his wife wanted a third baby who was born on [date];

xviii.His mother died suddenly in August 2016 which shocked the family; his father was still alive at this point and she had been his carer; he decided he would leave his family in Australia while he went to see his father, and told his wife, who is highly educated, she could stay here with the children if she wanted to; she decided to stay in Australia;

xix.He could not decide as to whether he should stay with his daughters or return to take care of his father, but then in February 2017 his father passed away;

xx.He had not studied since August 2016; he had heard from his college about enrolling for the next semester but he was going through financial hardship trying to support his family here and also in Pakistan; his course was cancelled due to non-payment of fees; he did not have the money to pay them; he knew by then he was in danger of breaching his visa conditions;

xxi.He did not go back to Pakistan because his wife was not ready to go; to force the issue would have resulted in separation;

xxii.He received the department’s Notice of Intention to Consider Cancellation (NOICC) of his visa on 23 March 2017; he responded to the NOICC on 29 March 2017 but the visa was cancelled on 4 April 2017.

xxiii.He did not know he did not have a Bridging visa at that point; he found out about it in February 2018 from his daughter’s school when he tried to enrol her; he contacted his agent who assured him the grant of a Bridging visa was automatic as soon as he sought the review, and that it allowed him to work and his daughters to study; he had emails to prove this advice was given to him (supplied after the hearing);

xxiv.In February 2018 he also attempted to re-enrol in his initial degree via his first education provider  [University 1] but they did not respond;

xxv.When he realised his Bridging visa had not been issued he followed up with the department about it; he went to the Department in [City 2] and they told him he needed to check online via his agent or whoever was handling his appeal; his agent [Mr B] again said the grant was automatic;

xxvi.He tried again to enrol  his daughter but the school would not allow it in the absence of a visa; his daughter had not since returned to school; from there on, he simply waited for his appeal; he was working part-time;

xxvii.Two days before the hearing, he saw his agent again and told him his daughters had not attended school for two years; the agent referred him to the department again but at that point the agent checked online and found he could apply for Bridging visas online; the Bridging visas were issued the day before the hearing;

xxviii.In response to the Tribunal expressing a concern that he had knowingly remained unlawful for more than two years; he said the agent had misled him; and after that he was just waiting for the review;

xxix.He now needed a visa and a few months to get back on track;

xxx.If his visa were cancelled, he said he would be ”in Pakistan next month, but my wife and kids would be here”; as he did not believe “a single per cent”  that his wife would go with him.  “I did my best, we had fights on this. I even asked my daughter if she would go with me and I would take care of her and get a good school, but she said she would stay with her mother, she said it’s dirty there, the teachers are not good”;

xxxi.In response to the Tribunal questioning how his wife could remain in Australia if her visa were cancelled as a consequence of the decision, [Mr A] responded he didn’t know how, and he told her the reality of her visa position, but she said he should go to Pakistan and she would stay and work out what she would do. She and the children would not leave with him; he had tried to persuade her, but “honestly, some lady she met told her she could seek asylum here. I told her I didn’t want to do that… I have a home, but it’s my kids and my wife, they are not supporting me; she is saying she will seek protection here”;

xxxii.In terms of his economic future, there was a big issue for him in returning to Pakistan, in that he had spent eight years of his prime youth here and he was not competitive now he was [age] years of age, he had no idea what he was going to do there; but he could provide for his children.

Does the ground for cancellation exist?

13. 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.

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

·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

15.      [Mr A] applied for the visa under review on the grounds that his intended purpose of travel to and stay in Australia was to study. After it was granted, he enrolled in [Course 5] at a [City 1] institution [in] July 2015 but his course was cancelled on 18 August 2016 for non-payment of fees. [Mr A] stated at the hearing that he completed one semester of the course before family circumstances arose that prevented him from enrolling in the second semester and he did not study beyond August 2016. These circumstances are discussed in more detail, below.

16.      The Tribunal has considered the applicant’s evidence, including oral submissions and written submissions, made prior to and after the hearing, in relation to condition 8202 and has no evidence before it that the applicant was enrolled in a registered course beyond 18 August 2016. The Tribunal has considered [Mr A’s] PRISMS record, which confirms his own sworn evidence that his [Course 5] was cancelled.

17.      The Tribunal is satisfied the applicant was not enrolled in a registered course after 18 August 2016. Accordingly, the applicant has not complied with condition 8202(2).

The discretion

18.      Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

19.      The applicant was granted his Subclass 573 visa on the basis of his intention to study [Course 5] in Australia and, as it was a temporary visa, to then return home.

20.      This was the third visa [Mr A] had held for study in Australia. His initial student visa for the higher education sector, also a Subclass 573 visa, was granted in August 2011, and a further Subclass 573 visa for the higher education sector was granted in April 2013. As the holder of [Course 3] and a [Course 4] from his home country, [Mr A] claims he came to Australia in 2011 after having been encouraged by his family to build on his qualifications and improve his skills in Australia to better provide for his family. At the time, his brother was in Australia, where he is now an Australian citizen. As the eldest son of the family, an Australian education for the applicant was considered important to his career prospects.

21.      [Mr A’s] study history in Australia is one of limited attainment for someone with two degrees from Pakistan. [On date], he completed a course in English for Academic Purposes; in November 2011 he commenced but did not complete [Course 1]; in March 2013 he commenced but did not complete [Course 6]; in August 2014 he commenced but did not complete [Course 2]; in July 2015 he commenced [Course 5] and completed one semester before the course was cancelled on 18 August 2016 by his provider for non-payment of fees.

22.      The Tribunal has no evidence before it that the purpose of [Mr A’s] travel and stay in Australia was for anything other than study.

23.      The Tribunal has considered the purpose of the visa holder’s travel and stay in Australia and concludes that [Mr A] was enrolled in study in Australia in an initial period of his visa grant, but has not studied beyond 18 August 2106, when course was cancelled. The Tribunal notes the applicant had worked part-time for a period after his visa was issued but this was within the work limitation condition of his visa. There is no evidence before the Tribunal that while he held the visa, the applicant used it for purposes other than the basis on which it was granted. The Tribunal affords this consideration some weight in the applicant’s favour.

Circumstances in which the ground for cancellation arose

24.      The circumstances in which the ground for cancellation arose were that [Mr A] ceased being enrolled in a registered course of study on 18 August 2016 and this was not in compliance with his visa condition 8202.

25.      [Mr A] claims this was due to factors including his his mother’s sudden passing; his father’s illness and passing; the consequent loss of his sponsor and mentor in his father; his decision to bring his wife and children to Australia, which added to his cost of living and logistical study considerations; and his wife’s alleged determination to remain in Australia with the couple’s children, rather than return to Pakistan after his father died.

26.      [Mr A] claims he was studying as planned and “everything was good” when he was persuaded to take on more difficult, degree-level study in [Subject 1], which was a known weakness area for him. Then his father suffered a debilitating collapse in November 2013 leaving him paralysed on one side. By this time his wife had settled into life in Australia, but circumstances in Pakistan were demanding his attention. His wife had wanted a third child, who was born in [date]. The sudden death of his mother in August 2016 left him in an untenable position, that of having to help his father in Pakistan and simultaneously support his family in Australia. He asked his wife to return home with him but she refused – as he records it, a family breakdown loomed if he tried to push her into it. He claims he suffered financially from the time of his father’s incapacity in November 2013 and this led to his failure to pay fees for [Course 5] and to the cancellation of the course by his provider. His father died in February 2017. He claims his wife then hardened her views about remaining in Australia. On 29 March 2017, he responded to the NOICC, laying out his circumstances, apologising for not notifying the department sooner, and asking for two weeks to resume his studies. The visa was cancelled on 4 April 2017.

27.      The Tribunal has taken into account the circumstances in which the ground for cancellation arose, and concludes his visa was cancelled because he was not enrolled in a registered course, as is found earlier in these reasons. The Tribunal accepts, however, that the impact of the tragic events in his family affected [Mr A’s] ability to cope with his educational challenges. From his evidence, he was having difficulty with his [Subject 1] studies prior to his father’s illness, and then his mother’s illness deprived the family of his father’s principal carer. The Tribunal is satisfied Mr [Mr A’s] circumstances profoundly affected his studies, but cannot assess with certainty whether or not the applicant would have successfully studied to the point of graduation in their absence. That said, his study record prior to his father’s illness is not without blemish: he did not complete the first award course in which he was enrolled, and this occurred was well before his father took ill. Nonetheless, the Tribunal accepts that the loss of two parents in less than a year, coupled with alleged difficulties in his marriage, were clearly adverse circumstances for him in the early stages of his study period in Australia and the Tribunal grants this consideration some weight in the applicant’s favour.

The extent of compliance with visa conditions; behaviour towards the department

28.      On the evidence before the Tribunal, [Mr A] has not complied with condition 8202 of his visa, as described in paragraph 17 above. He also maintained residence in Australia without a valid visa from the time of the cancellation on 4 April 2017 until 28 May 2019, a period of more than two years.

29.      [Mr A] claims this was not his fault. That, having sought a review of the decision to cancel his visa, he was acting on the advice of his migration agent that he and his family had been granted Bridging visas automatically as a consequence of the appeal. In the hearing, and in evidence tendered afterwards, namely email exchanges with his migration agent, [Mr A] seeks to demonstrate that he was misled by his agent into believing he and his family held Bridging visas, and try as he did, he could not sort the problem out.

30.      Submissions provided to the Tribunal has closely examined are email exchanges which tend to support [Mr A’s] claim that his migration agent, [Mr B], advised him incorrectly about his Bridging visa. The issue arose [Mr A] claims, when he made enquiries [with an official] of [School 1] in February 2018 about enrolling his daughters. The first of the emails, sent by [Mr A] on 15 February 2018, asks his agent to “Please send me my Bridging Visa Grant Notice”. The agent, in response, replied: “There is no bvb grant notice. It’s becomes granted when the AAT application is lodged – automatically… You can look up on vevo.” Ten minutes later the agent sent another email: “Have you changed your passport as VEVO doesn’t pick you or your daughters’ vevo even”. On 19 February 2018 [Mr A] again emails: “My Visa status is not appearing on VEVO why is that so?” On 20 February 2018 the agent responded: “I did reply to you earlier. I don’t know why the visa system shows that. Did you speak to the Department directly”. [Mr A] told the hearing he called at the Departmental office in [City 2] to enquire about the visa situation but an officer told him that he needed to apply online, through his migration agent.

31.      The Tribunal has considered whether the series of event s above fully explains why [Mr A] did not hold a visa for two years. The Tribunal concludes it does not absolve him of responsibility. It notes that on 4 April 2017, in the notification letter regarding his visa cancellation from the department, sent to his personal email address, the following is stated under the heading “Your immigration status”:  “As you do not currently hold a visa, you are in Australia unlawfully.” And continues: “You may be eligible for grant of a Bridging visa”. In the next sentence the department advises the applicant to seek advice from the department and provides contact details.

32.      The Tribunal has considered the applicant’s claims that he was misled by his migration agent into believing he held a current Bridging visa that had been issued automatically. The Tribunal accepts that the agent’s advice was inconsistent with the reality that he needed to apply for Bridging visas for himself and his family. However the Tribunal is not persuaded the applicant was entirely unaware that the visas had not been granted, because he was notified by the department’s cancellation notice of 4 April 2017, 10 months before he took action, that he was in Australia unlawfully. Further, the Tribunal does not consider the applicant took enough action once he realised the visas had not been granted. Setting aside his claimed visit to the department in [City 2], for which he provides no evidence, the Tribunal notes he then waited until his review hearing in May 2019 to reactivate the issue, a period of a further 15 months. By 30 May 2019, the date of the hearing, [Mr A] had secured a bridging visa, applied for online, and granted the day before, 29 May 2019.

33.      [Mr A] has not persuaded the Tribunal that he has valid reasons to have been onshore unlawfully since the time of his visa cancellation. His attempts to remedy his unlawful status by seeking a Bridging visa appear to have been minimal and despite some incorrect information having been given to him in February 2018, he bears responsibility for failing to remedy his immigration status. The credibility of [Mr A’s] claim that the circumstances which led to the cancellation of his visa were beyond his control, is weakened by this ongoing failure to take responsibility for his visa. 

34.      The Tribunal notes [Mr A] otherwise cooperated with the department in that he did not ignore the notice of intention to cancel his visa. He responded to the notice promptly. 

35.      The Tribunal affords the applicant’s compliance considerations some weight in his favour.  

The degree of hardship that may be caused by the cancellation to the applicant and his family

36.      [Mr A] claims the visa cancellation will mean that “I will be in Pakistan next month and my wife and kids will be here”. He states that there is no chance, “not one per cent”, that his wife will agree to go with him, instead, he told the Tribunal, she and the children will remain in Australia. The Tribunal reminded [Mr A] in the hearing that his wife and children are secondary visa holders who are wholly dependent on his visa. The applicant stated that his wife and his eldest daughter had made their views clear about returning to Pakistan: they would not go with him. He claimed his wife had sought external advice on her status and was contemplating seeking asylum in Australia, and this was a course of action in which he would not participate, as he wanted to be a genuine student here. No supporting evidence of plans to remain in Australia on the part of [Mr A’s] spouse has been provided to the Tribunal and the Tribunal is not satisfied this course of action will unfold as described. While the Tribunal accepts that [Mr A] is experiencing some marital tensions as an outcome of the cancellation of his visa, it notes he told the Tribunal, before the conclusion of the hearing, that he was taking his wife and children to [location deleted] for a holiday in June.

37.      [Mr A] claims he has reached a life stage, at age [age], where he will not be competitive in Pakistan if he goes home without completing [Course 5]. The applicant has not provided evidence to support this claim, and the Tribunal notes that, with or without major Australian qualifications, and with a strong command of English and with two degrees from Pakistani universities, [Mr A] is in a position which should afford him some employability as a professional. He has submitted to the Tribunal that he will be able to support his daughters in their schooling if they return home with him. The Tribunal has considered the applicant’s claim and while it accepts a completed [Course 5] would enhance his employability, it is not persuaded that, given his education and English language attainments, he will suffer economic hardship in Pakistan if he returns.

38.      The Tribunal affords this consideration some weight in the applicant’s favour.

Whether there would be consequential cancellations under s.140

39.      The Tribunal notes that the visas of [Mr A’s] immediate family members will be consequentially cancelled pursuant to s.140 of the Act if his visa is cancelled: those of his wife, [name deleted], and his children [name deleted], [name deleted] and [name deleted]. The visas of the secondary visa holders were granted on the basis of them being members of the family unit of the applicant and it is the intended consequence of the legislation that members of the same family have the same visa status. The Tribunal notes the claims of the applicant that the family unit will be broken up if his visa is cancelled because his wife has made clear to him they will not return to Pakistan together, rather she and his children will refuse to leave Australia. This claim infers that members of the family unit will be separated from each other by the cancellation. The Tribunal has noted and considered the claim but as discussed in paragraph 36, above, it has no supporting evidence before it that such a scenario will unfold in the manner the applicant describes. The Tribunal affords the consequential cancellation of the visas held by the secondary visa only slight weight in favour of the applicant.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

40.      The applicant has not raised the issue of legal consequences arising from the cancellation, other than to state that his wife is considering seeking asylum or otherwise to remain in Australia with the couple’s children as described earlier in these reasons. The Tribunal has no jurisdiction in relation to his wife’s visa, and none for his children’s visas. However the Tribunal has considered the impacts of legal consequences arising from the cancellation. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and in his circumstances, will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia. The applicant is currently on a bridging visa because of this review process, having resided in Australia without a valid visa from the date of the cancellation until one day prior to the hearing. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore. The Tribunal affords these considerations no weight in the applicant’s favour.

Whether any of Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

41.      In considering whether to exercise its discretion to cancel the applicant’s visa, policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). While [Mr A] claimed in the hearing that his wife would refuse to go to Pakistan with their daughters, and would remain in Australia if his visa was cancelled, the claim was not supported by evidence. Therefore no supporting information is before the Tribunal that a cancellation outcome would result in a separation of the children from their parents and therefore breach of any of Australia’s international obligations and the Tribunal affords this consideration no weight.

Conclusion

42.      The Tribunal has carefully considered the applicant’s claims, and weighed its considerations accordingly, as described earlier. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

44.      The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.

Meredith Jackson
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.