1907896 (Migration)

1907896 (Migration) [2020] AATA 2430 (19 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1907896
MEMBER:Michael Biviano
DATE:19 March 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 19 March 2020 at 1:16pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) not enrolled in registered course – changes of course and no completed study – parents’ health, grandparents’ deaths and family dispute – end of relationship with fiancée – mental health – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
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

This is an application for review of a decision dated 25 March 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 13 February 2018 to the cancellation of the visa on 25 March 2019 and he was not compliant with condition 8202 of his visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 22 November 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, who did not appear at the hearing.
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
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?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
a.be enrolled in a full-time registered course: 8202(2)(a);
b.maintain enrolment in a registered course that once completed will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b);
c.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and
d.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The Decision Record of the Delegate of the Department of Home Affairs dated 25 March 2019, confirms that the Department cancelled the applicant’s Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 25 July 2017 and set out the reasons for the cancellation of the visa (Decision Record).
The applicant gave evidence that he came to Australia in 2015 to study a Masters of Professional Accounting (MPA) at [University].
The applicant claims that while studying the MPA, his father’s diabetes condition worsened. In or around July or August 2015, his father had a heart attack. The applicant did not present any medical evidence about the heart attack in 2015. The applicant claims his father was hospitalised for 4 to 5 days because of the heart attack for observation. He claims that he was unable to concentrate on his studies because of his father’s heath conditions. The applicant passed two of the three subjects he studied in the first semester of the MPA and failed all three subjects in the second semester.
The applicant did present some medical records from his father’s condition in 2014, 2018 and 2019, predominantly records from the Premier Hospital. The records from 2014 confirm testing on his heart, including X-ray, pulmonary function test, urine test and a 2 dimensional echo test. The records from 2014 confirm that the applicant’s father had asthma and bronchitis in 2014. Those medical records do not substantiate whether the applicant’s father had a heart attack in 2015.
In light of the applicant’s poor academic results, he decided to change his course of study and attempt a lower level course. In 2016, he enrolled in a Diploma of Leadership and Management at [College 1] which was to lead to a Bachelor of Business.
The applicant in evidence claimed that his studies in the Diploma of Leadership and Management were progressing well in 2016. He had successfully completed three of four subjects that he had studied.
The applicant claimed that his father also had financial issues in mid-2016. The applicant’s father and family were living with the applicant’s paternal grandfather, and a dispute ensued between the applicant’s father and his uncles over the family estate which resulted in the applicant’s father being forced to leave the family home and attempt to locate accommodation.
The applicant claims he was forced to seek employment in mid-2016 to earn money to support himself and his father and mother back home. The applicant took up employment as a labourer to a building tradesperson and he claims he was earning $600–$700 per week working 20 hours per week.
The applicant’s father was eventually allowed to return home to the family residence.
The applicant claims that he deferred his studies for 2 semesters to provide financial support for his family and he remained in that job for one-and-a-half years.
In May 2017 he completed another semester in the Diploma of Leadership and Management and he passed all four subjects that he studied in that semester.
While studying the next semester, in August 2017, three weeks prior to the exams his grandfather became ill and he went back to India to visit his grandfather and family, where he stayed for approximately four weeks. His paternal grandfather passed away on 25 August 2017, which is evidenced in the Medical Certificate of Cause of Death as supplied by the applicant to the Tribunal.
The applicant’s evidence at the hearing in relation to the progress with his studies in the Diploma of Leadership and Management was that he was doing well in that course. However, the applicant submitted to the delegate the psychologist’s report of [Mr A] dated 24 January 2019 (Report). The Report states in relation to the applicant’s studies in the Diploma of Leadership and Management:-
[The applicant] came to Australia in March, 2015 to study a Masters of Professional Accounting at [University], Sydney Campus. In his first semester he passed one subject and then enrolled for the second semester but he didn’t pass any subjects. [The applicant] states that he couldn’t cope with the standard of Australian studies and he then enrolled for a Diploma in Leadership and Management leading to a Bachelors Degree at [College 1]. He stated that he studied in term one and then his grandfather became ill during the second term and that he was unable to study and passed no subjects. He then continued into term two and was able to pass two subjects, he says his grandfather was a bit better. He then took a break for a semester which was approved by [College 1]. Then in his third semester which was the second semester of 2017, his grandfather died just prior to the exams and [the applicant] returned to India in August 2017 to take care of his family. He says then that his family split a short time after he returned to Australia and that this caused great distress. He said that he couldn’t enrol in the last semester of 2017 because of these family issues.
The statement given by the applicant to [Mr A] indicates that the applicant was performing poorly in his studies in that he had only passed 2 subjects out of the 3 semesters he had studied. There are substantial inconsistencies in the evidence given by the applicant to the Tribunal and the statement made by the applicant to [Mr A] as set out in the Report.
The Tribunal notes that the Report recounts what [Mr A] was told by the applicant but does not express an opinion as to his condition and whether he was stressed or depressed to the extent that the applicant was unable to undertake studies or enrol in a course of study or make arrangements to defer his studies.
The death of his paternal grandfather set off a dispute between the applicant’s father and his brothers over the estate of their deceased father and again the applicant’s father was kicked out of the family property. This again caused him further stress.
The applicant claims that in or around November 2017 he enrolled in a Bachelor of Business at [College 1]. He gave evidence that he studied 2 subjects in the Bachelor of Business in late 2017 and he failed both subjects. He gave evidence that he paid the tuition fees for both subjects.
He gave evidence that he enrolled in the first semester of the Bachelor of Business and he enrolled in 3 subjects, of which 2 subjects he had already failed to commence in March 2018. He claims that he paid half of the tuition fees for the first semester and the remaining half were due in April 2018.
The evidence of the applicant was again inconsistent with the Report which stated that the applicant couldn’t enrol in the last semester of 2017. The letter of offer from [College 1] that the applicant provided to the delegate about enrolling in the Bachelor of Business (Management) from 27 August 2018 to 13 August 2021 is dated 18 June 2018.
However the Report stated:-
In January, 2018 he received an offer letter from [College 1] saying that he could enrol in the Bachelors course to begin in February but then they failed to provide a COE but deferred his enrolment to the May intake of 2018. However, [the applicant] states that in May his grandmother died and that meant he did not complete enrolment for the COE. He then states that his relationship with his girlfriend ended after a ten year relationship. He says these experiences were extremely disruptive and he hasn’t been able to enrol in another course until receiving a letter of offer again from [College 1] to continue with a bachelors degree.
The Decision Record confirms that on evidence provided to the delegate in the Provider Registration and International Student Management System (PRISMS), that the applicant had not been enrolled in a registered course of study since 13 February 2018. The Decision Record confirms that [College 1] notified the Department on 13 February 2018 that he was not commencing his studies in the Bachelor of Business and his enrolment ceased on that day.
The applicant conceded in evidence that he believed that his enrolment at [College 1] was likely to have ceased in January 2018 and that he was definitely not enrolled in a course of study from 13 February 2018 until 25 March 2019. He did not explain why his enrolment at [College 1] came to an end.
On 25 May 2018, the applicant’s grandmother passed away. The applicant claimed that the death of his grandmother caused him further stress and he was unable to get enrolled due to his stressed condition. He claims he was bedridden and couldn’t go back to study.
The applicant gave evidence that around June to August 2018 he separated from his fiancée with whom he was in love and they had been in a relationship for around 10 years. He claimed that his fiancée broke off the engagement because she obtained a marriage proposal from a person who had better prospects. He claims that he was shocked by the decision and unable to get enrolled. He was taking sleeping tablets to get through his issues.
The applicant did not enrol in June 2018 in the Bachelor of Business at [College 1] in accordance with the letter of offer.
On 21 January 2019, the Department provided him with a Notice of Intention to Consider Cancellation (NOICC) of the visa because he had not been enrolled since 13 February 2018.
On 25 January 2019, the applicant received a letter of offer from [College 1] that the applicant provided to the delegate about enrolling in the Bachelor of Business (Management) from 13 May 2019 to 22 April 2022.
On 25 January 2019, the applicant submitted by email the letter of offer, the Report, supporting documents and the following submission to the Department:-
Respected Sir/Madam,
My name is [the applicant], D.O.B. [Date], Citizen of India, presently studying in Australia and temporarily living in Australia at [Address].
This letter you have on your screen is not only the response, but it has all those aspirations and goals that a young boy has in his mind. I chose to study in Australia only because it is a trusted international student destination and Australian graduates fetch top notch job placements in India. I came to Australia on a student visa with the only intention to study here and then return to my home country and fetch a well-paid job in an MNC and get married to an Indian girl and settle down with my parents. I plead the delegate not to cancel my visa as this will bring me to a dead end when it comes to a career. I am still young, and you sometimes unknowingly do something, and you don't know how adversely that might affect you.
I plead to say that all this happened only due to the pressure of studies which subsequently resulted in mental stress. Another reason was the death of my Grandparents who passed away 25.08.2017 and 15.05.2018 respectively. Losing my grandparents in such a short period of time threw me in mental and emotional trauma thus affecting my ability to continue my studies. Another thing that came as a bombshell on me was my fiancée breaking up my 10 years relationship. Moreover, my parents had to move out due to the family disputes from the ancestral house where they lived all their life. Due to this very reason, my Mother fell sick in April and it was again another shot in my Acute mental stress. To, be honest, I was completely distressed due to all these very reasons.
I had my offers generated but these events hindered my ability to start my studies. Even before getting the call from the Delegate, I had arranged my meeting with the education agent for getting the admission and am getting my CoE for my studies.
I want to declare and solemnly state that I am a Genuine Temporary Entrant who has got Clear intentions of returning home. The only and only purpose of my travel to Australia is and always was to temporarily come here, study and return right after.
Coming to the extent of compliance with any conditions subject to which the visa was granted, I plead to say that I did not intentionally breach or even think of breaching the conditions which the Commonwealth of Australia has on my visa. I have kept my OSHC all active and going. I am intending to finish study quickly and return home. I am just a normal international student and was not aware of the in depth meaning of the conditions and its consequences on me.
The hardship that may be caused is that I will have to leave my studies in between and will return without having the proper profile in my hand that will ensure me a decent job. My parents have high aspirations on me and have spent all this money thinking that I will get to a big position in India after finishing my studies. I plead you sir that please help me keeping up to their dreams.
Coming to my behavior with the department, I have always been a law-abiding Genuine Temporary Entrant and has not obstructed in any undertaking of the Department. I have high regard for the Department and look up to you Sir and plead you to give me one chance to continue my studies and return home with the proper profile to be in the top-notch jobs in Indian Market.
As mentioned above, after getting this letter, I went and consulted a Registered Migration Agent and he has explained me the binding of Condition 8202 and how I need to adhere to it. Now I have been properly explained that I need to fulfil the requirements of my student visa and every condition has been properly explained to me and I plead to say that please consider my sincere pleading and give me one chance to live my dreams and make my parents proud when I return after my studies finish.
I want to solemnly declare that if you can give me a single chance to prove to my parents that I have graduated from Australia and have the degree in my hand, I will never let you down during my whole student visa and will leave Australia straightaway after finishing my studies.
Lastly, I want to say that this notice has shaken me up inside out and I also went to the Psychologist for my assessment due to the pressure that I have been in and I have attached a copy of my detailed assessment report.
Kindest Regards,
[the applicant]
On 11 March 2019, the Department provided him with an NOICC because he had not been enrolled since 13 February 2018, being a period of 11 months.
On 20 March 2019, the applicant provided supporting documents to the Department, which he had not been able to provide to the Department.
On 25 March 2019, the delegate cancelled the applicant’s visa for the reason set out in the Decision Record.
On 29 March 2019, the applicant enrolled in the Diploma of Leadership and Management at [College 2] which was to commence on 30 March 2019 and conclude on 6 July 2020. The enrolment is evidenced by Confirmation of Enrolment [Number].
Based on the applicant’s evidence and his concessions in evidence, he was not enrolled in a registered course of study from 14 February 2018 until the cancellation of the visa on 25 March 2019 being a period of 13 months and 11 days which is a long period of time not to be enrolled.
Accordingly the applicant has not complied with condition 8202(2) of his visa. As this was a condition which was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or to remain in Australia
The applicant gave evidence that he came to Australia in February 2015 to study the MPA.
Notwithstanding that the applicant has been in Australia since February 2015, being more than five years, he has not completed any tertiary studies. The applicant passed 2 of 6 subjects studied in the MBA and studied the Diploma of Leadership and Management and he passed either 2 subjects in 3 semesters of studies, per the Report or 7 of 8 subjects that he had completed in 3 semesters. The inconsistencies in his evidence at the Tribunal and what he has told [Mr A] which is set out in the Report are irreconcilable and the Tribunal is not satisfied that the applicant’s evidence is reliable unless it is corroborated by supporting evidence.
In any event the applicant’s poor academic results may be of a consequence of a student not genuinely studying and applying himself in his studies unless there is evidence explaining his poor academic results. Such poor academic results may establish that the applicant has not intended to study while in Australia.

The applicant gave numerous reasons as set out above for his inadequate academic results. They include:-
a.His father’s heart attack,
b.His father’s and mother’s health issues,
c.The death of his grandfather;
d.The death of his grandmother;
e.The separation with his fiancée; and
f.His father being displaced from the family home and the applicant having to work to support his family back home.
There was a gap in studies from around mid-2016 to early 2017 while he deferred studies to earn money for his family and the gap from 14 February 2018 to 25 March 2019. However there was no medical evidence tendered about his medical condition and mental state and ability to study or otherwise defer studies in that time. While the circumstances that the applicant has been subject to over the last years have been trying and difficult for the applicant they do not justify gaps in study and his failure to complete a course in five years.
The period of non-enrolment from 14 February 2018 to 25 March 2019 is a period of 13 months and 11 days which is a long period of time not to be studying in Australia which creates some doubt as to whether the applicant travelled and stayed in Australia for the purposes of study.
The applicant has given evidence that if possible he intends to remain in Australia to undertake studies. The applicant did not commence studying the Diploma of Leadership and Management at [College 2]. He has tendered a Confirmation of Enrolment [number] created 27 November 2019, to undertake an Advanced Diploma of Leadership and Management at [College 3] commencing 6 January 2020 and concluding on 2 July 2021. The applicant gave evidence that he would complete the course and seek to get enrolled in a Bachelor of Business at [College 1], so that he could work in a small company or call centre as a team leader.
Having regard to the applicant’s evidence the Tribunal accepts that the applicant has travelled to Australia and that he does intend studying in Australia in the future. However the gaps in his studies and his poor academic record while in Australia, do not reveal an intention to study whilst in Australia.
The Tribunal gives this matter marginal weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant gave evidence that he was not enrolled in a course of study from 14 February 2018 to 25 March 2019 being a period of 13 months and 11 days which is a long period of time. Therefore the applicant has not complied with condition 8202(2) for a long period of time. The non-compliance with condition 8202(2) for a substantial period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or that he was not responsible for the reason of non-enrolment.
The applicant has indicated that the reasons for non-enrolment were a mixture of reasons as set out above. However the primary reasons in February 2018 to March 2019, were the stress caused by the death of his grandmother and the separation from his fiancée. The applicant did not submit supporting medical evidence or psychological evidence that he was unable to study, or defer his studies due to his state. The Report submitted by the applicant does not make such findings.
While the death of the applicant’s grandmother and the separation with his fiancée, who was residing in India, while he was in Australia, may have caused him some grief and stress, the Tribunal is not satisfied such circumstances would have resulted in him not being able to study or get enrolled for 13 months.
The applicant was given the opportunity to file documentation with the Tribunal after the hearing supporting his application relating to his ability to get enrolled. The applicant provided a CoE [number] for the Advanced Diploma of Leadership and Management at [College 4]. The applicant also provided a Submission to the Tribunal on 28 November 2019 which stated:
In response to the AAT requirements to prove myself and my genuine intention to study AAT has gave me 7 days to provide some more documents and I have tried really hard to get admission into Bachelors but was not able to get admission as all the colleges and universities were denying me admission as my visa is being cancelled, they all refused me admission on GTE grounds. Now, after trying really hard to get back to the college and pursue my dream to study management, the college couldn’t allow me to study bachelors as I don’t have a proper visa to file for bachelors. I got admission into Advanced Diploma. I am writing this to give words to all the aspirations and goals that I have in my mind. I chose to study in Australia as it is the most trusted and safest destination for international students. I have my offer and COE generated today for advanced diploma in leadership and management which commence on 06/01/2020 which ends on 04/01/2021.
The mistakes that I did in the past were all unintentional and I was not aware about the consequences I have to face. I request the honourable member to grant me the visa to study to address my skill gaps to be ready for the challenges of the workforce back in my country. I am really determined to finish this course to be able to apply for reputed companies with new knowledge and international exposure on higher levels than the previous study. Mistakes do happen with humans and please give me my visa to study.
Reasons for Choosing this program
This is a program that will provide me, an industry relevant qualification, equip me with scholarly knowledge of Business, professional, interpersonal leadership and management skills needed to confidently and ethically work in corporate sector. This study will help me in quickly climbing up the corporate ladder with a handsome salary package alongside a respectable designation. The knowledge imparted in this program extends out in developing overall A skill which will provide me the skills for dealing with real time situations at my workplace and taking up core responsibilities of organization or a management consultant. It also hones the technical and leadership skills that will act as a bonus for me to take up an excellent job opportunity. I have been working in India and I can say that this course will guarantee me a stable job in my specialization sector as well as the Indian corporate world also has a high demand of the international management graduates.
Prospects in India
India is the one of the fastest growing Economies in the World. Specially my city Hyderabad All the MNC’s have moved their Offices to South India where I come from. Moreover, there is lot of National work as well. I can see myself securing a top-notch job in any of these MNC’s and National Companies. As being the resident of Hyderabad where there is lot of demand for international graduates I can say that graduate returns from Australia are highly regarded and can secured top notch jobs in India in national companies like Deloitte, KPMG, Ernest and Young, IBM, Satyam, Infosys and many more in India. Therefore, I decided that I need to do this study and return to India where I finally intend to settle. I will have priority over the local graduates due to the international study and exposure which I will be getting after completion of this course.
Reasons for choosing Australia
I want to study further as to plan my future, Initially I plan that I will go back to India and do my further study. I start research and the major universities in India conduct a written entrance exam and there are only a limited number of seats and a high competition and the rest of the aspirants are left out. Another problem of entry is the reservation in Indian universities which is a big hurdle for me as I am a general category student. Moreover, I have understood the value of studying in native English speaking countries. I have understood how good the education in Australia as compared to other countries plus studying here I really like this country and would like to stay temporary for studies If only you give me permission. I have studied in India as well and when comparing these countries, it is an enormous difference in quality and exposure. Australian qualifications are highly regarded in India and people look out for Australia return graduates. I am getting familiar with the Australian accent now and it is easy for me to grasp knowledge and things in Aussie accent than it would be in American or English accents. Moreover, I can focus on my studies more here than I would be able to do after moving places as it takes a bit to be comfortable at a new place and Sydney is bit comfortable for me with big Indian community living here with enough access to Indian food and groceries and other cultural things plus the weather here is similar to my country. Australia is a multicultural country and I feel comfortable going out to study and feel safe while being away from home as crime rates are lot higher in other International study destinations. Moreover, living expenses and tuition costs are lower in Australia than U.S., U.K. or Canada.
Reasons for choosing [College 4].
This program is offered by many institutes and universities in Sydney, so my preference was the accessibility of the campus, course time-table, faculty and facility. I made my research on the subjects which I am going to study in my diploma course and found that this is the most suited options for me. They had the intake and timetable suiting my circumstances, so I preferred this college. It has a modern and well-equipped campus which is conveniently located in Sydney. I check about other institutes which are offering same program, but I hardly found this course at an affordable fee structure & less time than.
Knowing Student Visa Conditions
When it comes to knowing and obeying my visa conditions, I assure you that I will obey all my new student visa conditions which allows me to study full time and work only 40 hours per fortnight during study.
Family Ties
Due to the social fabric and the cultural and ageing parents, I will have to go back and live with my ageing parent. Moreover, home is home at last. At this stage, my parents are doing well in terms of health and wellbeing. I have planned to finish my studies and I will be back home and would settled in Indian lifestyle returning from Australian qualification. I will live with my family in India and will settle down there.
In conclusion, after finishing my studies and returning home, I can fetch a highly sought-after job in Hyderabad easily and live a great life with my family. I will also be close to my parent who is ageing. Getting to a great professional position will also make it easier for me to prove myself. I am hopeful that I was able to express my purpose correctly and hoping that you will grant me permission to complete this qualification and start shining in my plan.
The Submissions do not provide an explanation for the gaps in his studies but set out his future aspirations and hopes to complete his studies in Australia.
The applicant gave evidence that he did not know that he was in breach of his visa in not being enrolled in a registered course of study. Ignorance is not a defence or reasonable explanation for a review applicant not being compliant with his or her visa. A visa holder who comes to Australia is expected to know and be aware of the conditions of the visa and be compliant with the terms of the visa.
Apart from not being enrolled in a registered course of study for the period of 13 months and 11 days, there is no evidence before the Tribunal he is in breach of other conditions of the visa.
Having regard to the period of non-enrolment, the applicant’s circumstances, and the duration of the breach, the Tribunal gives it some weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.
The applicant gave evidence that if he had to return home, he would need to obtain employment and look after his family which may be difficult as his employment prospects in India would not be strong. He would seek to do a management course or bachelor’s degree in commerce in India.
The applicant gave evidence that if his visa was cancelled it would cause him a substantial degree of hardship as he has not completed a course of study after five years in Australia. The Tribunal notes that the applicant would have incurred substantial expenses in his education, which would be lost regardless of whether his visa was cancelled or not.
Undoubtedly if the applicant were to return home after being in Australia for more than five years without obtaining a qualification, it would be a waste of his five years in Australia and it would be difficult to return home and gain employment.
The Tribunal finds that the applicant has not completed any tertiary studies courses and she will return home to India empty-handed if the visa is cancelled. Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and his family, who have funded his studies, if the visa is cancelled, in the cost of tuition fees that have been paid for the last five years. Most of the costs that have been incurred, save for the current enrolment of the Advanced Diploma of Leadership and Management at [College 4], are lost whether he undertakes any further study in Australia or not.
The Tribunal also finds that there is nothing preventing the applicant studying back at home to obtain his business qualifications.
While the impacts of cancellation would create some hardship, it is important to note that the student visa is a temporary visa and absent any other visa obtained by the applicant, the applicant will be required to return home once that visa expires or comes to an end.
The Tribunal finds that these above matters are the consequences of the visa cancellation, but they are not matters which would constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.
The applicant knew and was aware or ought to have known or been aware that by not being enrolled in a registered course of study he would have been in breach of condition 8202 and that his visa may be cancelled.
The primary purpose of the applicant under the visa is to be enrolled and undertake study on a registered course at a level appropriate to his visa but the applicant was not enrolled for a period of 13 months and 11 days which is a long period of time to be in breach of the visa.
The applicant claims that the circumstances of the cancellation arose from stress caused by the death of his grandmother and the separation from his fiancée coupled with the other difficulties he and his family have encountered while he has been in Australia.
The Tribunal has considered the applicant’s explanation for why he was not enrolled for this long period and therefore in breach of condition 8202(2). The Tribunal notes that the applicant was able to get re-enrolled on 29 March 2019 immediately after the visa was cancelled, and it does not accept the circumstances were beyond his control. The Tribunal does not accept the applicant’s circumstances were such that they indicate a reasonable explanation for not being enrolled for such a period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, the applicant did respond to the NOICC.
Further there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.
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
If the Tribunal decides to affirm the decision to cancel the visa under these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further pursuant to s.48 of the Act the applicant will have limited options to apply for further visas in Australia, so he may need to depart Australia and apply from overseas for most types of further visas.
Further, if the Tribunal decides to affirm the decision to cancel the TU500 student visa under these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013 of Schedule 4 to the Regulations, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.
However these consequences are the intended consequences of the legislation when a visa is cancelled under these grounds.
The applicant gave evidence that if the visa remained cancelled he would be applying for a domestic partner visa but he would return to India if he was required to do so and therefore there is no indication that he would become unlawful or be subject to detention.
Accordingly the Tribunal gives this factor some weight towards the visa not being cancelled.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to India and he did not give any reasons as to why he could not return to India and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
The Tribunal is not aware of any other relevant matter in relation to the decision whether the visa ought to be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michael Biviano
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)    The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)    a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)     must be enrolled in a full time registered course; and
(b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)    must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)    is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2020] AATA 2430

19 March 2020

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Breach

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