Adewole (Migration)

[2020] AATA 3513

Adewole (Migration) [2020] AATA 3513 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mary Adetola Adewole

CASE NUMBER:  1713414

HOME AFFAIRS REFERENCE(S):          BBC2017/1276791

MEMBER:Michael Bradford

DATE:21 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2020 at 10:53am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – credibility concerns – lack of financial capacity – genuineness of desire to study – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

Background, some evidentiary and procedural aspects

1. This is an application to review a decision made by a delegate of the Minister for Immigration and Border Protection on 16 June 2017 to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in that she had not been enrolled in a registered course of study since 24 August 2016 when her enrolment in a Bachelor of Science at the University of Sydney was cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The Review Application was filed on 23 June 2017 and is thus within time.

4. At the time the Review Application was filed the applicant wrote a letter to the Tribunal in which she said that, although she might not have complied with the condition, there was a financial crisis in her home country, Nigeria, towards the end of 2015 which prevented her sponsor, who are her parents, from paying her initial tuition fees for the Science course. She also asserted in this letter, or at least this is how the Tribunal reads it, that she enrolled in a vocational course in aged care, described in the letter as a Certificate III, in an attempt to avoid breaching the condition and because she had a new passion for a career in aged care. She went on to say in this letter that she completed her studies in this course but an injury prevented her from seeking employment in that field. She then refers to her enrolment in a Certificate IV in Ageing Support (the CIV) as proof of her interest in that field and ambition to study.

5. On 19 August 2018 the applicant provided to the Tribunal another statement in which she revisits her enrolment status and, more particularly, the circumstances which led to the cancellation of her enrolment in the Science course and her attempt to enrol in another higher level combined course at the Australian Catholic University (ACU). Numerous other documents were provided by the applicant at or about this time in support of her review case.

6. In early July 2019 the Tribunal invited the applicant to attend a hearing scheduled for 4 August 2019 which she promptly accepted by returning a completed On-Line Hearing Response Form but no other documents were provided at this time. Unfortunately, due to an oversight in the Tribunal, this hearing had to be vacated on the day it was due to take place and arrangements were made to re-schedule it.

7. On 4 October 2019 a further letter was sent to the applicant inviting her to attend the re-scheduled hearing on 28 October 2019 at 9.45 am. This letter informed her, as did the earlier one, that she should return the completed Hearing Response Form and provide to the Tribunal within 7 days all other documents on which she proposed to rely.

8. On 8 October 2019 the applicant returned the completed Form accepting the invitation and additional documents were also provided, including a copy of her recent enrolment applications to ACU and the University of Sydney.

9. Prior to the hearing the Tribunal obtained a PRISMS record and Movements Details for the applicant the contents of which were discussed with her at the hearing. These details were, for the most part, uncontentious.

10. The PRISMS record revealed that the most recent registered course of study in which the applicant had enrolled was the CIV which she had undertaken at Nurse Training Australia (NTA) in Sydney. According to this record this course had a start date of 20 November 2017 and a finish date of 18 November 2018, details which appear in the COE for this course. According to PRISMS the applicant successfully and duly completed the CIV in November 2018. There is also a Certificate from NTA to this effect, a copy of which was provided by the applicant after the hearing. PRISMS also records that the applicant’s enrolment in the Science course was cancelled for non-commencement of studies on 24 August 2016.   

11. The applicant appeared at the hearing on 28 October 2019 to give evidence and present her case. She gave her evidence without an interpreter and without an agent. She appears not to have engaged the services of an agent at any stage in connection with the review.  

12. Towards the end of the hearing, having discussed with the applicant some concerns about her case, the Tribunal acceded to her application to provide some additional documents and made a direction which enabled her to provide them within 7 days. An application from one of the applicant’s friends, who attended the hearing but who did not give oral evidence, to provide a written statement was refused for reasons which the Tribunal gave at the time.

13. On 31 October 2019 and 4 November 2019 the applicant provided the specified documents together with other documents not previously requested. Although the Tribunal had cautioned the applicant against providing other material when it made the direction these other documents have been read and put into the electronic file.

14. More recently, in view of the delay in the delivery of this decision, the Tribunal has obtained an up-dated PRISMS record and Movements Details for the applicant. These updated records are in the same terms as the earlier ones.

15. The Tribunal has also recently listened to the audio tape of the hearing.   

    The Department’s decision and the material on which it was based

16. The NOICC, a copy of which appears to have been served on the applicant on 6 June 2017, recites that she was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 20 January 2015. It goes on to recite that the visa was subject to condition 8202(2)(a) and that she may not have complied with it. The PRISMS record then available to the Department indicated that she had not been enrolled in a registered course of study since her enrolment in the Science course came to an end when it was cancelled on 24 August 2016 for non-commencement of studies. The NOICC invited her to respond within five (5) working days, which she did.

17. In her email to the Department of 13 June 2017 the applicant accepted, in effect, that she was in breach of the condition but said it was unintentional in that she was unable to procure the funds to enable her to proceed with the Science course; that she was scared and depressed when she could not go ahead with it; and that an injury to her right wrist had led to surgery and ongoing complications. According to this email she had considered going home at this stage but later states that she planned to enrol in a new course, although she did not identify in the email what that might be.

18. In another email of 8 June 2017, a copy of which had also been sent to the Department, the applicant’s general medical practitioner, a Dr T Anspal, certified that she had first sought medical treatment from him on 13 October 2016 after sustaining what appears to have been a repetitive strain injury to her right wrist while at work on 29 September 2016 and that she had a prolonged rehabilitation. 

19. In reaching her decision the delegate took the information in those emails into account but, in relation to the issue of whether the applicant was in breach of the condition, the delegate noted that she did not dispute there were grounds for cancellation of her visa; reiterated that the information then available to the delegate in the form of the PRISMS record established that she had ceased studies on 24 August 2016; that she had not been enrolled in a registered course of study since that date; and that the ground for cancellation under Sec 116(1)(b) had accordingly been made out.

20. At the discretionary level, on the issue of whether the visa should be cancelled, the delegate addressed the relevant PAM3 factors. In so doing, she noted that the applicant had failed to provide any financial evidence; observed that it was reasonable to have expected her to depart Australia until her financial situation had improved; noted that although she had sustained an injury to her right wrist while working to save funds she had not provided any medical evidence to substantiate any ongoing emotional or mental health issues; and that she had not sought to defer her studies in the Science course on compassionate grounds, as she should have done.

21. In summary, the delegate said that the applicant had remained in Australia for an extended period of time without being enrolled or studying in any registered course and that she had not demonstrated a pathway to an educational outcome.

22. The NOC was based on the findings in the decision and was issued on 16 June 2017. It reiterated that the University of Sydney had cancelled her enrolment in the Science course on 24 August 2016, that it appeared from the PRISMS record that she had not been enrolled since that date in any other registered course, that she was thus in breach of condition 8202 and that the grounds for cancelling the visa under Sec 116(1)(b) of the Act outweighed the grounds for not cancelling it.

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

    Review issues and the Tribunal’s approach to them

24. In the course of her oral evidence, and indeed in her documentary case, the applicant accepted that her enrolment in the Science course had been cancelled by the University of Sydney on 24 August 2016 for non-payment of fees but there was nothing in her other evidence to suggest that she had withdrawn her previously articulated position that she did not intend to breach the condition or that the breach was beyond her control because of financial constraints and/or medical issues.

25. This being so it will be necessary for the Tribunal to consider two issues on this review; firstly, whether she has breached condition 8202(2)(a); and, if so, whether her visa should be cancelled under the general power in Sec 116(1) of the Act.

    Evidence and findings on the review

    Is the power to cancel the visa enlivened-has the applicant breached condition 8202(2)(a)?

26. At the hearing the applicant did not dispute that her visa was subject to condition 8202 nor did she dispute that, at the time of the delegate’s decision, she had not been enrolled in a registered course of study since 24 August 2016. The Movements record confirms that her TU-573 visa was subject to various conditions one of which was 8202. Nor did the applicant deny that she was at all times aware that her visa was subject to that condition and, indeed, she appears to have explicitly accepted in her 13 June 2017 email to the Department that she was aware of it and had agreed to comply with it.

27. The Tribunal does not accept the applicant’s assertion that she did not intend to breach the condition as she must be taken to have intended the natural and probable result of her actions and omissions to act which, in this case, inevitably led to the cancellation of her enrolment in the Science course and consequent breach of the condition but, in any event, her subjective state of mind can have no bearing on the issue of whether condition 8202 was breached when her enrolment in this course was cancelled.   

28. According to the evidence led in support of the applicant’s review case, the cancellation of her enrolment in the Science course came about solely as a result of funding issues. This is so because the medical evidence which she provided to the delegate in the form of the 8 June 2017 email established that the injury to her right wrist did not occur until 29 September 2016 and there is no other medical evidence to support her assertion that she was depressed at or about that time.

29. As to her assertion that the breach came about because of funding constraints, although the Tribunal is prepared to accept her evidence about this, it cannot have the effect of putting the breach out of her control. The breach arose on and from the cancellation of her enrolment in the Science course which on the evidence took place on 24 August 2016. As the delegate has correctly pointed out, it would have been open to the applicant to have taken steps to avoid the cancellation by seeking to defer her enrolment in this course on compelling or compassionate grounds. Certainly, she has not suggested in her case that such a course would not have been open to her well prior to 24 August 2016 and, in any event, she was apparently well aware of the financial crisis in Nigeria by the end of 2015, and thus was also most probably aware of the effect which it apparently had on her parents ability to meet her tuition fees. Insofar as her August 2018 statement might be taken as suggesting that she was not made aware that her parents could not afford to pay her tuition fees until in about September 2016, at or about the time when she sustained the injury to her right wrist, the Tribunal does not accept this evidence. This being so, she had ample time in which to seek to defer her enrolment in that course during the first half of 2016 and the fact she did not do so is, in the Tribunal’s view, a complete answer to the proposition that she had no control over the breach.

30. Thus, the breach by the applicant of condition 8202(2)(a) is clearly established on the evidence and the power to cancel her visa under Sec 116(1) is enlivened.

    Should the visa be cancelled?

31. Having found that the applicant has not complied with a condition of her visa the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or in the Regulations made under the Act which must be considered in the exercise of this discretionary power. Obviously the Tribunal must consider the individual circumstances of each case as revealed in the evidence, including the matters raised by the applicant together with the other matters referred to in the Department’s Procedures Advice Manual (PAM) to the extent to which they arise for consideration on the evidence.

32. Before coming to those matters it is firstly necessary for the Tribunal to say something about the applicant’s credibility as a witness and the reliability of her evidence.  

33. Overall, she was not a particularly impressive witness and, in some important respects, her evidence was for various reasons quite unconvincing. By the end of the hearing she had managed to give the Tribunal the fairly distinct impression that she had set out to present her case in the best possible light, that is to say in a way which she thought would best advance her interests, rather than by doing her utmost to give a completely frank and objective account of the facts, as she understood them to be.

34. Allowances must be made for the fact that the applicant was unrepresented at the hearing, quite nervous when giving evidence and at times appeared to be quite unsure of what she should say. Her ongoing mental health issues may have played a part in this although there is no medical evidence to suggest that her thinking abilities were in any way affected. Long pauses when endeavouring to answer apparently simple questions did nothing to instil a belief in what she was saying. Moreover, at times during the course of her evidence the Tribunal formed the view that she was prevaricating and at other times she had to be reminded of the need to focus on the questions and to answer them as best she could. A professed inability to understand apparently simple and straight forward questions also did nothing to assist her case.

35. Parts of her oral evidence are quite inconsistent with her documents, the outcome of her enrolment in the CIV and whether the University of Sydney refused to release her from the Science course being instances of this, while other parts of her evidence are confusing and difficult to accept when viewed against the objective features or when tested against what the inherent probabilities would suggest. Her documentary case has some internal inconsistencies and inaccuracies which, although the applicant has sought to explain some of them, give rise to lingering doubts about her reliability. The letter which she wrote to the University of Sydney in July 2016 giving her reasons for wanting a release from the Science course is an instance of this. Nowhere is this letter does she mention financial constraints as being a reason for wanting to switch to a combined degree course at ACU which is quite at odds with the case which she ultimately presented on this aspect at the hearing.

36. More particularly, the applicant has steadfastly maintained that she has an ambition to engage in higher level studies in Australia and intends to do so if given the opportunity but her own conduct since arriving here in early 2015, after making due allowances for her injuries and ongoing mental health issues, is difficult to reconcile with these assertions and, given her financial situation, they appear to be completely unrealistic in any event.

37. Other aspects of her conduct are cause for concern and do her little credit. For example, despite having filed her Review Application in June 2017, the applicant took no documented steps to enrol in a higher level course until on or about 9 October 2019, that is to say about 2 months after the original hearing was vacated and about 5 days after she received notice of the re-scheduled hearing, when she sought to enrol in a combined undergraduate course at ACU and a Bachelor of Arts at Sydney University. Opportunistic conduct such as this does nothing to enhance her credibility as a witness, nor does it enhance the general merits of her case.

38. For these reasons the Tribunal has ultimately concluded that the applicant’s evidence, both oral and documentary, must be approached with caution and in key respects cannot safely be acted on alone. The Tribunal’s initial concerns about certain aspects of her evidence, many of which were discussed with her at the hearing remain prevalent, particularly in relation to her asserted motives, intentions and reasons for wanting to stay here, and is not prepared to act on that evidence, or to accept it at face value, unless it is corroborated by other more reliable sources, is inherently plausible or amounts to an admission against her interests.

39. Although there are some aspects of her case which the Tribunal is prepared to accept, even though the objective features might suggest otherwise, for the most part the Tribunal looks to the independent documentary and other contemporaneous records as the sources of information on which it can safely act.

40. The applicant was born in Nigeria in September 1986. She completed High School in 2003 before, according to her October 2019 Statement, starting a course in Civil Engineering at a local institution but did not complete it before she came out here on a TU-573 visa in January 2015 to study a package of courses at the University of Sydney. These courses consisted of a 12 month Foundation Program (Standard) at Taylors College costing some $21,000 which according to the applicant her parents funded, and the Bachelor of Science. At that stage she had a passion to study geology, apparently.

1. According to her August 2018 statement, she took an additional 6 months to complete the Foundation Program finishing it in July 2016. In her oral evidence she said that she had to defer commencing her studies in the Science course because she took an extra semester to complete the Program, although the reason for this was not adequately explained. The Science course was thus due to begin in July 2016 and was to run for a period of 3 years at a cost, she says, of about $41,000 per year. The applicant’s case is that she was unable to proceed with this course because her parents could not afford it.

2. Although PRISMS indicates that her enrolment in the Science course was cancelled for non-commencement of studies and not for non-payment of fees the Tribunal accepts her evidence that she could not proceed with that course because of financial constraints.  

3. Among the documents which she provided to the Tribunal is her Application to the University of Sydney dated 6 July 2016 for a release to facilitate the proposed switch to ACU together with her detailed letter of that date in support. Although in neither of these documents, both of which she signed, is there any reference to funding issues being a reason for her proposed switch to ACU the Tribunal is prepared to accept the explanation which she gave for this at the hearing, namely that the combined course at ACU was considerably less expensive than the Science course at Sydney and this was one of the reasons, albeit not the only reason, which she had for wanting to go across to ACU. This is most probably the way she was looking at it at the time and the Tribunal is prepared to accept her evidence about the respective costs of these higher level courses at these institutions which is broadly to the effect that ACU was a considerably cheaper option. If she was operating under financial constraints at that time pursuing a cheaper alternative would have been a sensible and logical step for her to have taken but, on her documentary case at least, it does not appear that she did so.

4. In the result the Tribunal accepts that, in or about early 2016, her parents told her they could not afford to meet her tuition fees for the Science course and that this was one of the reasons why she wanted Sydney University to release her from that course.

5. The evidence also establishes that Sydney University refused to release her from that course, the University’s letter of 8 July 2016 having informed her of this. In her undated Statement which the Tribunal received in August 2018 the applicant says that she applied for enrolment in ACU at that stage but was unsuccessful because of that refusal. Again, although a copy of her 2016 application to ACU has not been produced, the Tribunal is prepared to accept her evidence on this aspect.

6. There is a good deal of documentary evidence relating to some injuries to her wrists which the applicant has sustained during her stay in Australia, their sequelae and about her ongoing rehabilitation and other related mental health issues.

7. The Tribunal has no difficulty in accepting this evidence which is broadly to the effect that, in September 2016, she developed a repetitive strain injury in her right wrist while working as a room attendant for the Sofitel Hotel in the Sydney CBD. She initially had conservative treatment but ultimately had surgery on her right wrist in December 2016, returned to work with a brace in January 2017 and, in March 2017, was reported to be making good progress by her Orthopaedic Specialist, a Dr Kwan Yeoh.

8. On 17 October 2017 the applicant enrolled in the CIV at NTA, a 12 month course due to start in November of that year and which, according to the COE for this course, attracted a tuition fee of almost $10,000. There is no evidence from the applicant to throw light on who in fact paid this fee but other evidence establishes that she did commence her studies in this course on time. There is no independent record confirming that she enrolled in a CIII or that she ever completed such a course but it well have been subsumed into the CIV. Nothing of any real significance seems to turn on this.  

9. According to the medical records, in January 2018 she developed pain in her left thumb as a result of compensating for ongoing issues with her right wrist whilst at work on light duties and she was certified as unfit for work during the first half of 2018, it seems.

10. In early September 2018 she had surgery on the left wrist and was again certified as unfit for work until 14 September 2018, at least. In her oral evidence she said that she only worked on a casual or part-time basis for about a total of 6 weeks in 2018. The medical evidence, in particular the prolonged period of pain management which is recorded as having continued until May 2019, would suggest that she may well be right about this too.

11. Although the Tribunal accepts that the applicant has been receiving regular treatment at Sydney Clinical Psychology during the second half of 2019 for mood and adjustment difficulties arising from her workplace injuries, there is no medical or other evidence to suggest that any of these difficulties, that is to say any of her medical issues, have compromised her ability to engage in productive study. The fact that she enrolled in the CIV in October 2017, and possibly a CIII before then, and completed these courses on time in indicates as much.

12. Although the applicant asserted in the course of her oral evidence that she did not complete the CIV because of these ongoing medical issues in the second half of 2018, and that she stopped attending classes in August of that year, other independent evidence in the form of the NTA Certificate, a copy of which she provided after the hearing, establishes quite clearly that she did in fact complete the CIV. Also, in her Curriculum Vitae (CV), a copy of which she also provided after the hearing, she includes the CIV in her educational background and refers to some employment in that field during 2018. The applicant says that she has not returned to Nigeria to pursue a career in this field because of her injuries and ongoing rehabilitation but there is no medical evidence to establish that she would no longer be able to pursue such a career. 

13. The applicant details her employment history in the CV. She clearly has a fairly extensive and varied work history for an international student in Australia but has, according to other evidence in the form of the statement relating to her savings account with the Commonwealth Bank for the quarterly period ending on 28 October 2019, been unable to save any significant funds, in recent times at least. She presently works part-time as a Customer Service Officer with Officeworks and has done so since July 2019, apparently.

14. The Tribunal mentioned earlier that the applicant’s applications for enrolment in the combined Arts courses at ACU and the Bachelor of Arts (BA) at Sydney University were lodged in October 2019.

15. Copies of these two applications were provided by her in support of her review case together with other related documents after the hearing. These documents are to the effect that the ACU application was unsuccessful because of her visa status-she has been on bridging visas since her TU-573 was cancelled-but that the application to Sydney University resulted in an unconditional offer of admission into the BA. This offer, which is contained in the University’s letter to her of 8 October 2019, was on terms which provided for commencement of study in Semester 1 of 2020, that is to say in February of this year, at a cost to her of some $41,000 for the first year with an initial fee of some $20,500 payable on acceptance.

16. The applicant has led no evidence in this case to the effect that she has accepted or purported to accept the offer from Sydney University and, indeed, her case is that she cannot afford to do so unless the University saw fit to make special fee arrangements with her. There was some discussion about this possibility at the hearing but there is no evidence to the effect that any such arrangements have been sought by her let alone acceded to.

17. The Tribunal considers it would be very unlikely in the current market for international students in Australia that any such arrangements would be made for her by that University but, in any event, she has not sought to make them, nor has she sought to defer her admission into the BA course as she could have done in accordance with the terms of the offer.

18. The Tribunal must thus proceed in this case on the basis that the offer from Sydney University has already lapsed according to its terms.

19. Turning to the PAM3 factors, as to the circumstances in which the breach occurred, the Tribunal accepts the applicant’s evidence that the breach of condition 8202 arose in August 2016 as a result of funding constraints consequent on her parent’s involuntary withdrawal of financial support and that these constraints have continued to play a significant role in the applicant’s ongoing failure to enrol in a higher level course since that time. To that extent the circumstances in which this breach occurred and continues to occur are in some degree extenuating and due weight must be given to them. That said, even if the applicant’s case that these constraints have in effect prevented her from enrolling in a higher level course since August 2016 is accepted, it cannot outweigh the fact that she is, on the evidence led, quite unable to afford a higher level education in Australia, either now or in the foreseeable future.

20. According to the applicant’s oral and documentary evidence, which the Tribunal is prepared to accept, she lives alone in rented premises situated in Leichhardt and, in late October 2019, had a credit balance in her savings account of some $1,131.The bank statement for the July/October period, a copy of which the applicant provided after the hearing in response to the Tribunal’s request, confirms that she was saving at the rate of $626 each fortnight during this period from her employment at Officeworks and had accumulated savings of $3,131 by the beginning of October but she withdrew the sum of $2,000 from this account on 15 October 2019 and, she says, gave it to her sister to meet her tuition fees in Nigeria. So much also appears from her 31 October 2019 Statement. Absent any corroborative material by which to establish that she gave this money to her sister, the Tribunal is not prepared to accept that she did but, in any event, the reason for this withdrawal does not seem to matter a great deal. 

21. The applicant’s current situation is that she is not currently enrolled in a registered course of study and has not been so enrolled since she completed the CIV in November 2018, now some 20 months ago.

22. On the evidence led, she has no realistic prospect of being able to afford higher level or indeed any vocational studies either now or in the foreseeable future. Certainly, on her case, the applicant can apparently no longer expect financial support from her parents and she does not appear to have any other source of income or assets from which to meet the cost of an expensive higher level education here. The fact that she has recently withdrawn from her account the vast bulk of her savings suggests to the Tribunal that she other priorities in any event.  

23. An additional difficulty for the applicant at the discretionary level is the fact that the Tribunal remains unpersuaded that she still has a genuine ambition to study in Australia in order to further legitimate career goals and would be in a position to do so for that reason if given the opportunity.

24. The objective features of this case, including her recent conduct in enrolling or in seeking to enrol in these higher level courses, does not convince the Tribunal that her assertions about these things can safely be acted on.

25. More particularly, the fact that she completed the CIV in November 2018 and sought enrolment in undergraduate courses at Sydney University and ACU in October 2019 does not demonstrate to the Tribunal’s satisfaction that she has either the ambition or the financial means to undertake them. The fact that she has not accepted the unconditional offer from Sydney University for enrolment in the BA, or at least made attempts to determine whether special fee arrangements in that course could be made for her, does nothing to assist her case and, indeed, it serves to undermine it, as does the fact she has recently given away most of her savings. These are very weighty matters in the overall context of this case.

26. Despite the fact that the applicant has repeatedly asserted, as recently as October 2019, that she has an ambition to study in Australia, the Tribunal is not prepared to accept that her primary motivation for remaining in Australia since August 2016 has been to study for legitimate career related purposes. Whilst the Tribunal accepts that financial constraints have existed since her enrolment in the Science course was cancelled it is not convinced that these constraints are the only reason for the applicant’s failure to make any higher level academic progress since August 2016. More particularly, the Tribunal is not prepared to find that she would have undertaken such a course for legitimate career related purposes before now had her parents been able to fund her education here.

27. Much of her own conduct since she completed the Foundation Program in July 2016 is not consistent with that of a genuine student who wishes to pursue a higher education in Australia for those purposes. The simple and incontrovertible fact is that she has not been enrolled in a course for which the TU-573 visa was designed since her enrolment in the Science course came to an end in August 2016, now almost 4 years ago.

28. Looking at the other PAM3 matters, the Tribunal is prepared to accept that the applicant came out to Australia on a Higher Education TU-573 visa to study in the Foundation Program and the Science course at the University of Sydney but, on the applicant’s own case, she has been unable to go down that path.

29. Despite her assertions to the contrary, the applicant appears to have no ongoing interest in a career in geology or in aged care and, indeed, insofar as the evidence goes, has not stated in clear terms why she has recently wanted to pursue higher level studies in the courses at ACU or Sydney University. Bearing in mind the timing of these applications, and the fact they were lodged when she must have known that the hearing was imminent, they appear to have been motivated more by strategic considerations than out of a genuine ambition to study in order to further career prospects. The fact that she cannot on the evidence afford to undertake them suggests as much.   

30. Changes in academic direction and intended career paths are accommodated in appropriate cases but this case is not one of them. The applicant has not demonstrated to the Tribunal’s satisfaction that she has any real academic interest in pursuing these other courses and, in any event, she clearly does not have the financial means to do so.

31. As to the question of hardship, the Tribunal accepts that the applicant’s road in Australia has not been an easy one. Her work related injuries, and the ongoing psychological issues arising from them, are factors which must be taken into account in her favour at the discretionary level. That said, as noted earlier, the evidence does not support the conclusion that these injuries and other issues have in any real sense compromised, at any stage, the applicant’s capacity to engage in productive study. Certainly, there is no evidence that these factors have any ongoing significance in her case.

32. In addition, the Tribunal accepts that the applicant and her parents will be disappointed at this outcome but, at the end of the day, these are not matters which the Tribunal can attach any great weight to. After all, the applicant has remained in Australia for an extensive period of time in breach of the conditions on which the TU-573 visa was granted to her and, for this, she must accept responsibility. A factor of not inconsiderable importance in this case is that she could and should have gone about her situation here very differently, a fact which she appears in her evidence not to recognise. Instead of taking the necessary and appropriate steps to regularise her academic situation by seeking a deferral of her studies and/or by returning home until her financial situation had improved, she has been gainfully employed here for much of the time, has managed to establish personal friendships and, it appears, religious ties in the local community.

33. There is nothing of any concern regarding the applicant’s past and present behaviour towards the Department or in relation to her compliance with visa conditions generally. Certainly the delegate appears to have had no concerns about these aspects in June 2017 and nothing has occurred since on which the Tribunal should entertain any such concerns. The Tribunal accepts that the applicant has complied with the work restrictions on her visas, including her bridging visas.

34. There are, of course, other mandatory legal consequences arising from the cancellation to which the delegate has referred in her decision but these are intended consequences of the legislation and little if any weight can properly be attributed to them.

35. The evidence does not suggest that there are any relevant international agreements or other obligations.

36. There appear to be no other relevant matters.

37. Overall, the considerations referred to above weigh heavily in favour of the Tribunal exercising its discretion to affirm the decision to cancel the applicant’s visa.

38. Considering the circumstances as a whole the Tribunal thus concludes that the visa should be cancelled.

    DECISION

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

    Michael Bradford
    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.