Abdul Rehman (Migration) - [2022] AATA 417

Abdul Rehman (Migration) [2022] AATA 417 (12 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Abdul Rehman Abdul Rehman
REPRESENTATIVE:  Mr Brian Park (MARN: 0960412)
CASE NUMBER:  2102687
HOME AFFAIRS REFERENCE(S):          BCC2019/3199752
MEMBER:Wendy Banfield
DATE:12 February 2022
PLACE OF DECISION:  Canberra
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 12 February 2022 at 6:45pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment in a higher level course – applicant failed preliminary English courses – reliance on an agent in Pakistan – circumstances beyond the applicant’s control – COVID19 pandemic travel restrictions – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 362
Migration Regulations 1994, Schedule 2 cl 500.213; Schedule 4, Public Interest Criterion 4013; Schedule 8, Condition 8202
CASES
Zhang v Minister for Immigration and Border Protection [2016] FCA 921
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 September 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with a condition of the visa. The applicant did not 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. 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 matter is before the Tribunal because of a Court order for it to determine the reinstatement application made on 22 May 2020 pursuant to s.362B(1C) of the Act. The Tribunal decided to reinstate the application for review.
Pre-hearing
On 2 December 2021 the applicant was invited to attend a hearing on 20 December 2021. On 15 December 2021 the Tribunal received a request for a hearing postponement claiming an email sent from the applicant’s representative to the applicant went to his spam folder and he was only notified about the hearing through text message from the Tribunal. The applicant requested a postponement to the new year in order to prepare necessary documents. On 17 December 2021 the Tribunal replied to the applicant and advised the request for a postponement had been refused and the hearing would proceed as scheduled. The applicant was advised that any additional documents he wished to submit could be discussed at the hearing.
On 17 December 2021 the applicant’s representative sent a further email to the Tribunal in which he referred to the matter being remitted from the Federal Circuit Court. He submitted that with regards to the hearing scheduled for 20 December 2021, the applicant required time to prepare documents and “the applicant never was given any decent time for preparing documents for hearing”. The representative advised that his office would be closed over the Christmas period until 5 January 2022.
The Tribunal noted the applicant’s case had been remitted from the courts on 25 February 2021 and the applicant advised the Tribunal of the appointment his current representative on 25 March 2021. The Tribunal considered the applicant’s request but noted the applicant had been aware of the issues in his case since his visa was refused on 19 September 2019. The Tribunal was of the view the applicant had ample opportunity to prepare for a second hearing and obtain documents. The Tribunal wrote to the applicant advising he had not indicated what documents he wished to submit or why he wanted to submit them prior to the hearing. He was advised that the Tribunal may allow time after the hearing for him to provide further documents. The Tribunal stated it considered it had discharged its obligations to provide the applicant with an opportunity to give evidence and present arguments relating to the issues arising in his case and the hearing would proceed as scheduled at 2:00pm on Monday 20 December 2021.
Evidence in support of the application for review
·     Representative’s submission received on 21 January 2022.
·     Applicant’s passport information.
·     Copies of relevant legislation and visa conditions.
·     Copy of the applicant’s Mechanical Engineering degree and academic transcript from the National University of Sciences and Technology, Pakistan.
·     English Proficiency Certificate from the National University of Sciences and Technology, Pakistan dated 28 November 2017.
·     Copy of the applicant’s higher secondary school certificate dated 5 October 2010.
·     Applicant’s visa grant notices.
·     Department of Home Affairs decision record dated 19 September 2019.
·     Copy of information from the Education Services for Overseas Students (ESOS) framework.
·     Copy of the Explanatory Statement to the English Language Tests and Evidence Exemptions for Subclass 500 (Student) Visas 2016/019 and English language testing requirements.
·     Letter from QHAQ Teaching Hospital dated 3 August 2018 concerning Mrs Iffat Atta.
·     Referral letter from Dr Tasawar Aslam dated 6 May 2020 regarding the applicant.
·     DASS 21 Psychological Assessment scale in the name of the applicant dated 6 May 2020.
·     Letter from Sunshine Coast University Hospital Emergency Department dated 3 February 2020 regarding the applicant.
· Copy of Federal Court of Australia case Zhang v Minister for Immigration and Border Protection [2016] FCA 921.
·     Property Evaluation Certificates from Al-Syed Associates, Architecture Engineers, Planners and Developers, Pakistan.
·     Evidence of registration of property in Pakistan in the name of the applicant.
·     Affidavit by Muhammad Abdullah, father of the applicant dated 20 January 2022.
·     Character Certificate – Abdul Rehman from the Islamic Society of Holland Park dated 20 January 2022.
·     Statement of Rana Naqash Saadat, brother-in-law of the applicant (undated).
·     Statement of Haris Saadat, owner of BBQ Tonight Restaurant, Brisbane dated 24 May 2021 regarding the applicant’s volunteer work.
·     Statutory declaration of the applicant dated 21 January 2022.
·     Copy of a document with photo attached ‘Supercity Exceptional Living’.
·     Untranslated documents.
·     Faysabank Account Statements in the name of Mohammad Abdullah.
The Tribunal considered the evidence provided to the Tribunal (differently constituted) previously, and information submitted to the Department including applicant’s written statement and Confirmation of Enrolment certificates.
The applicant appeared before the Tribunal on 20 December 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
Evidence at the hearing
The Tribunal noted the applicant had advised he wanted to provide further documents in support of his case. He referred to having helped his sister and brother-in-law in Australia to take care of their children and not being able to study or work currently because he does not have the right to. The Tribunal asked the applicant about his qualifications in Pakistan. He said he completed a Bachelor of Engineering and was intending to study a Masters in Australia. The applicant confirmed he had problems with the course. He said that because of his English level, he was not given enrolment in the course by his university. According to the applicant, he was not able to pass the English test given by Monash University. He said they were not allowing him to enter the course without passing the English test. He said he failed the test a few times.
The Tribunal asked the applicant why he wanted to study in an English-speaking country if his language skills were not good enough. He said he wanted to improve his English, but he failed the test, and he was new to the country. The applicant said he did his schooling and bachelor’s degree in English so he thought he could study here. The applicant said he still wants to study in Australia and hopes to start the master’s again. The applicant said he had trouble being able to read and write English, although he could speak it. He said he would like to start again if he is able to.
The applicant said he studied in a Diploma course because he had to maintain enrolment, and he wanted to improve his English. He was asked if he had contacted the Department about his circumstances after failing the English test and being unable to start his Masters. He said he did consult a migration agent, but they did not help him. The applicant said he spoke to an agent about his English level and the requirement to study. He was asked why he enrolled in a Bachelor of Agribusiness when he already had a degree in engineering. He said he wanted to get to the same level as before, and then go on to a masters because he was not able to get admission at that level.
The Tribunal referred the applicant to the Department’s decision that found he had not maintained visa conditions and therefore, there were grounds to cancel. The applicant agreed there had been grounds to cancel his visa but added the university was not admitting him to study a master’s degree which was why he had breached visa conditions.
The Tribunal explained that since he agreed there were grounds to cancel his visa, it would discuss whether the visa should be cancelled in his case. The Tribunal accepted the applicant had travelled to Australia for the purpose of study. He was asked whether he has a compelling need, or strong reason to remain in Australia. The applicant replied he had wanted to go to Pakistan but was unable to due to the pandemic. He said his sister and brother-in-law are here and he had to support them, also their children are very attached to him. The Tribunal reminded the applicant the student visa is temporary and would not allow him to stay permanently. The applicant said he understood but his brother-in-law has been sick, although he is well now. The Tribunal put to the applicant that the purpose of a student visa is to study, not to provide care to relatives. The applicant repeated he would have gone back but there were no flights due to COVID-19. He said he had been planning to go back to Pakistan. As to why he still wants to continue studying, he said he still wants to complete it before he returns. The applicant said his uncle works in agriculture and he needs to support him. The Tribunal questioned the applicant why he wanted to study a master’s in engineering for that purpose. He said before he was not ready, but now he wants to continue in agriculture. He said he would then enrol in a Master of Agriculture. He said he would not have to complete the Bachelor of Agribusiness that he previously obtained enrolment in.
The Tribunal put to the applicant that he may need a background in agriculture to be able to enrol in a master’s degree in that subject. He said he is from a farming background. The Tribunal reminded the applicant his degree is in engineering. He said they are related, and he could become an agricultural engineer. The applicant was asked if he could study further in his own country and he answered no, because his parents have already invested in his education. The Tribunal suggested that if he has language difficulties, and he completed his degree in Pakistan, it would be easier to study in his home country. The applicant replied he could pass the English test now and repeated that his parents have paid for his education here. He said it will be difficult if he goes back without completing his studies, he has some psychological issues and he can’t face his family without doing so.
The applicant claimed he has complied with all other visa conditions. He said he applied to study while holding a Bridging visa, but it was refused. He confirmed he was living with his sister and not working. Regarding any hardship that would result from his visa being cancelled, the applicant submitted his parents have been sending money to support him because he can not support himself. He referred again to having complete his studies and said because he has improved his English, he can pass the test now. The Tribunal asked the applicant about his previous comment that he had difficulty reading and writing English. He said he completed the diploma course which helped.
The Tribunal referred the applicant to his evidence to the Department in which he stated he wanted to complete his studies in sections by doing a diploma, degree, and masters. He said he would be able to pass the English test and complete a master’s degree. The Tribunal advised the applicant it would consider the circumstances that led to his visa being cancelled. He was asked about his statement to the Department that he had not been aware of the requirement to maintain enrolment at the same AQF 9 level. The applicant advised he could not do anything else because he was not allowed to study the master’s course. The applicant said the agent in Pakistan did not advise him about the visa conditions. He said he only came to know about it when his visa was cancelled. The Tribunal put to him that it was his responsibility to be aware of and comply with visa conditions. The applicant said he would for next time and would not breach any conditions again.
The applicant confirmed no one else has a visa that would be cancelled if his visa is cancelled. He said his migration agent is helping him to understand the visa conditions and he will not breach them in future. The Tribunal explained the legal consequences of cancellation to the applicant and asked him if he wished to comment on that. He said he made a mistake and was only 21 at the time, also he wanted the opportunity to correct the mistake he made. The Tribunal explained to the applicant it needed to consider whether Australia had any international obligations in his case and asked if there were any issues that would prevent him from returning to Pakistan. The applicant referred to the COVID-19 pandemic and said he had helped the community during that time. The Tribunal explained the criteria regarding Australia’s international obligations again, but the applicant did not comment further.
The applicant requested time to provide a further submission and additional documents which the Tribunal agreed to. He reiterated he wants to complete his studies in Australia. The applicant advised his migration agent was not available over Christmas and requested time until 17 January to provide submissions. The Tribunal agreed with the request.
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 (Cth) (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:
·be enrolled in a full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant did not 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.
The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree.
On the evidence before the Tribunal, the applicant’s visa was granted in relation to a Master of Advanced Engineering, which would have provided a qualification from the AQF at level 9. Since then, the applicant has enrolled in a Diploma of Leadership and Management which provides a qualification from the AQF at level 5, and a Bachelor of Agribusiness at level 7. Accordingly, the applicant has not maintained 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.
The applicant submitted he did not have the required English language proficiency to undertake the course and had been unaware of the requirement to maintain enrolment at the same level of study. The representative submitted in part:
Applicant completed Bachelor of Mechanical Engineering from COLLEGE OF ELECTRICAL AND MECHANICAL ENGINEERING under NATIONAL UNIVERSITY OF SCIENCES AND TECHNOLOGY (NUST) in year 2016.
NUST issued an English Proficiency certificate stating that course was delivered in English.
Based on issued English Proficiency certificate by NUST, Monash University enrolled applicant in Master of Advanced Engineering [088686D].
AR [the applicant] never appeared for IELTS or required English test format thus never met 500.213(3) of Schedule 2 to the Migration Regulations 1994 (Ref: F2016L00629 IMMI 16/019).
Monash University didn’t take a reasonable step in enrolling applicant in Master course.
Applicant didn’t even meet the minimum requirements as set by Department of Home Affairs.
Applicant failed to take IELTS or accepted English test prior to start of the course on 23rd July 2018.
Applicant reached Australia and realised that he doesn’t hold English language competencies to study Master of Advanced Engineering.
The Tribunal considered the submission regarding the circumstances of the applicant’s admission to study in Australia and failure to maintain enrolment at the required level. Monash University has its own requirements for admission into certain courses. The Tribunal notes the applicant provided certification from his university in Pakistan that his bachelor’s degree was undertaken in English. Monash University sets out its English language requirements for international students on its website which includes:
You can meet the English language requirements through any of the ways listed below if you haven't completed at least six years of schooling in an English medium institution in an English-speaking country prior to the age of 19…
- study in an English medium educational institution equivalent to at least 24 Monash credit points (one semester of full-time study) at Australian VET diploma level (AQF Level 5) or higher.[1]
[1]

“English medium educational institution” is explained further as completion of an undergraduate qualification at an institution that teaches entirely in English. Monash advises that if a student has studied in an English medium educational institution equivalent to at least 48 Monash credit points (one year of full-time study) at Australian VET diploma level or higher, they do not need to provide further evidence of English proficiency such as IELTS/TOEFL/PTE).[2] It was open to Monash University to accept the applicant’s evidence of prior tertiary study in English as evidence of his English proficiency.
[2] /student-faq-nested-accordion/english-requirements.
Clause 500.213(1) of the Migration Regulations is a requirement that must be met by an applicant if required to do so by the Minister. Clause 500.213(3) states that the Minister may specify the requirements for the purposes of cl.500.213(1). If the applicant satisfied the English language entry requirement set by the education provider, he would not necessarily be required by the Minister to provide evidence that he has a level of English language proficiency that meets the requirements specified in an instrument.
The applicant’s representative made further submissions regarding the grounds for cancellation:
We accept that as per s.116(1) (aa), in absence of English test, that circumstances for the grant never existed. However, AR is at not fault and relied on the information provided by the education agent in Pakistan who got him admission in the Master course without realising that he doesn’t hold valid IELTS result.
Applicant breached s.116(1)(b), by not commencing his course on the proposed date as per the COE. However, decision-maker should have considered that there is still utility for s.116(1) (fa) in relation to the current version of condition 8202(3) for which certification of unsatisfactory course progress or attendance constitutes the relevant breach of the condition. For example, s.116(1) (fa) may apply where the education provider has provided information about poor attendance or course progress, but the applicant has changed course provider or ceased enrolment. The point that I am trying to make is that it is hard to determine, whether a student is going to satisfactorily complete a course without a satisfactory English language test result and by understanding the course content.
Applicant in response to NOICC, did not accept that the breach of Condition 8202 of Schedule 8 to the Migration Regulations occurred because the applicant was not aware of his subclass 500 visa condition and that he needed to commence his Higher Education which was cancelled by the University. After completion of his AQF 5 Diploma level course, AR wants to pursue Bachelor and Master as he believes he has upskilled his English language skills which are required to enter into the course.
The Tribunal does not accept the arguments submitted that the applicant was not at fault because he relied on an agent in Pakistan and did not undertake an IELTS English test. The applicant was applying to study a master’s degree in an English-speaking country and as already stated, he provided certification from his university in Pakistan regarding his English competency which the education provider in Australia may have accepted. The applicant stated at the Tribunal hearing that although he could speak English, he had difficulty reading and writing, which is crucial for a student who is seeking to undertake post-graduate studies in English. It was the applicant’s responsibility to ensure he had the requisite level of English.
Regarding the submission referring to “s.116(1) (fa) in relation to the current version of condition 8202(3)”, set out above, it is not clear what point is being made[3]. The submission suggests: “it is hard to determine, whether a student is going to satisfactorily complete a course without a satisfactory English language test result and by understanding the course content”. The applicant in this case explained at the hearing he did not commence the Master of Advanced Engineering degree because he did not understand the course outline. Instead, he enrolled in a diploma course and bachelor’s degree and as a result, he did not maintain enrolment at AQF level 9 or above as required.
[3] A student visa may be cancelled under s 116(1)(fa) where the visa holder is not, or is likely not to be, a genuine student - s 116(1)(fa)(i); or the visa holder has engaged, or is engaging, or is likely to engage in conduct / omissions in Australia not contemplated by the visa - s 116(1)(fa)(ii).
The representative’s submission states that in replying to the Department’s NOICC, the applicant did not accept that a breach of Condition 8202 of the Migration Regulations occurred because he was not aware he needed to commence his higher education degree which was cancelled. Later in the representative’s submission it states: “Applicant has only breached condition 8202 (2)(b) of condition 8202 because of noncommencement of Master of Advanced Engineering (Australian Qualifications Framework (AQF) Level 9 (master’s degree))”. During the Tribunal hearing, the applicant conceded there were grounds to cancel his visa, although he qualified his answer with an explanation of the circumstances. The Tribunal finds it was the applicant’s responsibility to ensure he was aware of, and complied with, the conditions of his Student visa. Having assessed the submissions, the Tribunal finds the applicant has not complied with condition 8202(2)(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 Procedural Instruction ‘General visa cancellation powers’.
·the purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant travelled to Australia to study a master’s degree and was enrolled at Monash University. Based on the evidence provided the Tribunal is satisfied the applicant’s intention to travel to and stay in Australia was to study.
The applicant gave evidence in writing and at the hearing about a compelling need to remain in Australia. At the hearing the applicant said his sister and brother-in-law are in Australia and he had to support them during the pandemic when his brother-in-law was unwell. He advised their children are very attached to him. The applicant also stated he was unable to study after his visa was cancelled but he wants to continue studying and complete courses before he returns to Pakistan. The representative’s written submission sets out the applicant’s plans to undertake a Bachelor of Agribusiness in Australia and advises he has been unable to enrol in higher education due to the no study condition attached to his current visa.
The Tribunal considered the submissions provided but as explained during the hearing, the purpose of a student visa is to study, not to provide care to relatives. While the applicant may wish to complete further tertiary study in Australia, he has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
·the extent of compliance with visa conditions
There is no evidence before the Tribunal that the applicant has not complied with visa conditions and the Tribunal has taken this into account. However, a failure to maintain enrolment and continue a course of study is a fundamental breach of the student visa and weighs against the applicant in this case.
·degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant has claimed he would suffer hardship if he is unable to complete his studies in Australia. During the hearing the applicant said his parents have been sending money to support him while in Australia and he was unable support himself. It was submitted his parents want him to return with a degree qualification. The representative’s submission states the applicant ‘s mother Mrs Iffat Atta suffers from ill health. There is also evidence of the applicant having a history of depression and anxiety for which he has received treatment. The Tribunal considered that the applicant already holds a bachelor’s degree from his home country and not demonstrated the necessity of completing a further undergraduate degree. However, the Tribunal accepts the applicant will not be able to continue studying or residing in Australia if his visa is cancelled and he will suffer some degree of hardship. The Tribunal gives some weight in the applicant’s favour when assessing this criterion.
·the circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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 representative’s submission includes a number of claims regarding the circumstances in which the ground of cancellation arose: the applicant was not aware of the conditions attached to his student visa including the requirement to comment his studies after enrolling at Monash University, the applicant’s English language proficiency was beyond his control; he would not have been able to complete his course due to “incompetent English language skills”; the applicant had been enrolled in Monash University without an acceptable English level test; his English proficiency was judged based on NUST having issued an English Proficiency certificate; neither the university nor the education agent in Pakistan conducted “proper due diligence” in relation to 500.213(3) of Schedule 2 to the Migration Regulations.
The representatives’ submission makes the claim that the applicant failed to meet condition 8202 because of circumstances beyond his control, specifically because; “he can’t read and write the content in which he was enrolled for because of his English language proficiency”. It is further claimed that if the applicant commenced his course, he would have failed in subjects leading to a breach of condition 8202 (c)(i) and either way, he would have breached his visa condition 8202. As outlined in this decision, the Tribunal finds it was the applicant’s responsibility to ensure he had the necessary English language skills to study a master’s degree in Australia and to understand the conditions attached to his student visa. The Tribunal rejects the argument that not being able to read and write English and a failure to understand the course were matters beyond his control, or that it was the fault of his university or education agent. Therefore, the circumstances in which the grounds for cancellation occurred weigh against the applicant in assessing whether the visa should be cancelled.
·past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department and the Tribunal has given some weight in the applicant’s favour in this regard.
·whether there would be consequential cancellations under s 140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
·whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.
·whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The representative’s written submission refers to a previous Tribunal matter, and to Article 3.1 of the United Nations Convention on the Rights of the Child[4]. It was submitted in writing, and by the applicant at the Tribunal hearing that his sister’s children are attached to him and a strong bond has formed. The applicant claimed that separating him from them may have an adverse effect on the children and their emotional wellbeing. It was also claimed the applicant has a special bond with his sister and these circumstances may be said to affect the interests of Australia the interests of an Australian citizen. The Tribunal accepts the applicant may have a close relationship with his sister and her family and they may not want him to leave Australia. However, according to the evidence, the children referred to live with their parents and the departure of the applicant, their uncle, will not change their family unit. It was explained to the applicant during the hearing that the student visa is not a permanent visa and it is expected that applicants intend to stay in Australia temporarily for the purpose of study. For these reasons, the Tribunal is not satisfied Australia has any international obligations in this case.
·if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
[4] Article 3.1 In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
The Subclass 500 Student Visa is not a permanent visa.
·any other relevant matters
It was submitted the applicant does not have a criminal record and poses no threat to the Australian community. Written and oral submissions were also made advising that the applicant was engaged in community service in Australia during the COVID-19 pandemic. This included assisting with food preparation and deliveries to people in need, and that he assisted his sister and brother-in-law when the required it during lockdown. The Tribunal was also advised that if the applicant’s student visa is not cancelled, he can work for an Australian employer while there are shortages of staff during COVID-19. The Tribunal considered the submissions on these matters but is not satisfied they outweigh the factors against the applicant in this case.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that most considerations weigh against the applicant. The Tribunal is not satisfied the applicant’s submission of wanting to complete further studies before returning to his home country outweigh the grounds for the visa 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.
Wendy Banfield
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.