AHSAN (Migration)

[2020] AATA 964

AHSAN (Migration) [2020] AATA 964 (19 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Naveed AHSAN

CASE NUMBER:  1709243

HOME AFFAIRS REFERENCE(S):          BCC2017/810219

MEMBER:Justin Owen

DATE:19 February 2020

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2020 at 1:57pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – health conditions – non-payment of fees – financial issues relating to health conditions – health cost should not preclude enrolment obligations – did not have funds to pay fees – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 140, 359AA
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan born 6 June 1985.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 8 June 2016 and was subject to condition 8202.  The visa had a stay period with a stay period until 7 August 2018.  On 4 April 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course since 18 August 2016.  The applicant responded to the NOICC on 4 and 11 April 2017.  On 20 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The applicant appeared before the Tribunal on 11 February 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

5. 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

6. 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?

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

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

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

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

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

9. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 20 April 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 18 August 2016. The applicant therefore had not been enrolled at the time of the delegate’s decision for a total of over 8 months. 

10. At the hearing the applicant confirmed in questioning by the Tribunal that he had not been enrolled in a registered course of study during this period of over 8 months.  

11. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

12. 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

13. The applicant stated to the Tribunal he arrived in Australia to study a Master of Business Administration (MBA).  Whilst the Tribunal notes he is still to complete any course of study whilst in Australia, the Tribunal notes the applicant has studied an Advanced Diploma of Leadership and Management since 2017 and states he is due to complete the course in March 2020.

14. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention was to travel and stay in Australia for the purposes of study.

15. The Tribunal has considered whether the applicant has a compelling need to remain in Australia.  The Tribunal notes that the applicant is shortly to complete his Advanced Diploma of Leadership and Management and does not hold any further enrolments.  The Tribunal enquired as to his future intentions.  He stated that he intends to recommence his MBA.  The Tribunal provided the applicant with a copy of his PRISMS record dated 5 July 2019 that states he has received a COE for his MBA on four separate occasions, only for his COE to be cancelled for non-payment of fees each time.  The Tribunal put the PRISMS record information to the applicant under s359AA.  The applicant decided to respond at the hearing.  He stated that he had suffered initially after a diagnosis of [Medical condition 1] which led to him being unable to pay for all his MBA subjects as demanded by his education provider due to his health costs.  He stated he had obtained COEs on the other three occasions for visa purposes.  He said he was unable however to afford the course fees and on each occasion his COE was cancelled for non-payment. 

16. The Tribunal asked the applicant if he could afford to study for an MBA given the course fees and his stated challenges.  He claimed he had family support from Pakistan who would cover his fees though there is no evidence before the Tribunal to substantiate this claim.  The Tribunal has doubts as to the applicant’s commitment to study at the higher education level: both from a financial perspective and a genuine commitment to study a higher education course of study.   

17. Given the circumstances outlined, the Tribunal does not accept the applicant has demonstrated a powerful or compelling reason for needing to stay.  It appreciates he has studied a vocational education course the last few years but notes his enrolment was for a higher education course of study.  The Tribunal furthermore notes the applicant states he is due to complete his Advanced Diploma studies in March, meaning in all likelihood he may have completed his studies prior to any departure from Australia.  For these reasons, the Tribunal is not satisfied that the applicant has a compelling need to remain in Australia. 

    The extent of compliance with conditions

18. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions other than those that he has accepted, and the Tribunal has taken this into account. 

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship)

19. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his Student visa be cancelled.

20. The applicant advised that no education provider would grant him a new COE if his Student visa was to be cancelled.  The Tribunal accepts that he will not be issued a COE if he is no longer a student, is no longer holding a Bridging visa and is potentially required to depart Australia.  That is an intention of the legislation.  The Tribunal gives such a claim of hardship little weight.   

21. The applicant claimed his future would be ‘destroyed’ should his visa be cancelled and stated that this would be the biggest hardship he would face.  The Tribunal does not accept this claim.   The Tribunal accepts that he will be disappointed should his visa be cancelled: that is a reasonable reaction from such a process.   In the absence of any detail beyond statements that his family would be very disappointed in him, the Tribunal does not consider this to be a reason for it not to cancel his Student visa. 

22. The applicant has stated he wishes to study an MBA in Australia and has intimated the loss of such an opportunity would be a significant hardship.  The Tribunal notes that the applicant was granted a 573 higher education visa for the purposes of studying at the higher education level.  Despite four separate MBA COEs he has not made any progress in his higher education studies.  The applicant stated in oral evidence that his vocational education studies have been preparing him for higher education, though the Tribunal notes the applicant has also stated his study programme was for the study of an MBA, not for vocational courses.  The Tribunal notes the applicant’s evidence concerning his health issues and their impact on his higher education studies, though in the Tribunal’s opinion the evidence suggests his failure to study for his MBA is as more the result of a failure to pay his student fees on multiple occasions than his illness.  The Tribunal furthermore notes the applicant has still been able to successfully study a vocational Advanced Diploma course despite his illness.   The Tribunal does not on the basis of the evidence before it consider the loss of the applicant’s opportunity to study for an MBA in Australia to be particularly harsh or onerous.

23. The Tribunal notes that the applicant will potentially be able to study for an MBA off-shore in Pakistan if he so desires and has the financial means to do so.  The applicant claims the standard of education in Pakistan is inferior and stated in response to the Tribunal that he would not be able to complete his studies offshore.  The Tribunal accepts the applicant would prefer to study in Australia.  This does not in the Tribunal’s opinion represent a reason not to cancel his Student visa in the circumstances.   In the absence of any supporting evidence, the Tribunal does not accept the applicant is unable to complete any further studies offshore.  The Tribunal does not consider such a claim constitutes a reason not to cancel the applicant’s visa.

24. The Tribunal notes that the applicant has been enrolled in an Advanced Diploma of Leadership and Management since 2017 and states he has three subjects to complete in his studies.  He states these will be completed by March.  The Tribunal accepts that not being able to complete these last subjects represents a degree of hardship to the applicant.  The Tribunal notes however that the applicant is only weeks away from completing his Advanced Diploma and he could potentially finalise his studies prior to being required to depart Australia.  The Tribunal furthermore notes that the applicant’s study is a vocational education course, not a higher education course as required in the enrolment conditions of his visa.  His visa and his study program were for the purposes of studying at the higher education level, not the vocational level.  The Tribunal accepts there is a degree of hardship pertaining to the completion of his Advanced Diploma but considers it in the circumstances to be limited.

25. The Tribunal discussed with the applicant his mental and psychological health.  The Tribunal has considered any hardship that may be caused to the applicant in these areas.  The Tribunal asked what professional assistance he has had for his mental health.  The applicant stated he received psychological advice and support through a family friend who is a medical professional residing in Pakistan.  He said he receives the assistance through the internet and via email.  He claims he last discussed his mental health around three months ago and he was advised by this individual that he should seek a local specialist if he requires more support.  The applicant claimed that he had been thinking of seeking professional advice but he was now feeling better.  There is no evidence before the Tribunal of the applicant’s professional mental health advice from offshore or in Australia.  The Tribunal accepts that the applicant may have discussed his situation with his family friend in Pakistan but does not on the evidence before it consider this constitutes a formal professional treatment plan.   There is no evidence of a mental health plan.  On the evidence before it, the Tribunal does not consider the applicant’s mental and psychological health and any potential treatment in Australia are reasons for the Tribunal not to cancel the applicant’s visa.

26. The applicant notes the applicant’s claims concerning his health and his diagnosis of [Medical condition 1].  The applicant provided the Tribunal with some health test results as well as a letter to a specialist from April 2018 from his GP seeking opinion and management for his [Medical condition 1].  The applicant requested time to produce further evidence which the Tribunal granted.  The Tribunal has noted his post-hearing medical evidence.  The Tribunal accepts he has been diagnosed with [Medical condition 1].  The applicant said that his treatment had been very costly, amounting to around $[amount] though there is no evidence of expenditure of this quantum before the Tribunal.  The Tribunal has considered any hardship that might be caused to his treatment through the cancellation of his visa.  The applicant does not consider on the facts before it that cancellation of his visa will cause any additional hardship to his health.  The Tribunal notes that the applicant stated he had attempted unsuccessfully to procure pharmaceuticals to treat his illness via Pakistan as they were more affordable than in Australia.  The applicant if he returns offshore will, based upon his own evidence, be able to access pharmaceuticals on a more affordable basis in Pakistan.  The applicant has stated he is receiving financial support from his family now. The Tribunal is not convinced he will not be able to access a degree of family support if he returns to Pakistan for important matters such as his health.  In relation to his health on a broader level, the Tribunal has also noted that the applicant’s health has not precluded him studying successfully at the vocational level since 2017.  The Tribunal on the evidence before it does not think the applicant’s health and his treatment regime in Australia are reasons not to cancel the applicant’s visa.  

27. The applicant states he does not have a girlfriend, wife or partner.  He does not have any family in Australia.  Departing Australia will not cause any hardship to any Australian-residing family members.

28. The applicant states he resides with friends who share their collective living costs.  He states that he receives the monies for his living from his family offshore.  The Tribunal accepts there may be some minor financial hardship to the individuals he cohabitates with should he be compelled to depart Australia but this can be easily mitigated through acquiring a new house mate. 

29. The Tribunal has considered any hardship that might be caused to his family offshore.  He stated he is the oldest child and his siblings would be disappointed in him as would his mother.  The Tribunal accepts that the desire of the applicant’s family offshore is to see him succeed. The Tribunal accepts that they will be disappointed by the cancellation of his visa and his return from Australia without an MBA.  The Tribunal does not however consider this is unusual or onerous and is not satisfied that the cancellation of the applicant’s Student visa will generate any particular hardship on his family. 

30. The Tribunal considers any hardship that might be caused to the applicant or his family is on the evidence very limited.  The Tribunal notes the applicant’s strongly articulated desire to remain in Australia to study at the higher education level, but on the evidence it does not think any hardship that might be generated in cancelling his visa and the applicant’s return to Pakistan is onerous.  In regards to the degree of hardship to be caused to the applicant and his family should his visa be cancelled, the Tribunal weighs the matter in favour of cancelling the visa. 

    Circumstances in which the ground for cancellation arose.

31. The applicant’s visa was cancelled because he remained in Australia as the holder of a Student visa but did not continue his studies for a period of over eight months.  The applicant however has claimed this period came about due to the complications arising out of his health and his [Medical condition 1] diagnosis.  He has claimed that the breach of the visa condition was beyond his control.  

32. The Tribunal put the PRISMS record which outlined the applicant’s breach of the condition attached to his visa to the applicant under s359AA and invited the applicant to comment on or respond.   The applicant responded orally at the hearing. 

33. The applicant addressed the circumstances that led to him not being enrolled in a registered course of study.  He stated he arrived in Australia on 8 July 2016 and after about a week became unwell with [deleted] that lasted for months.  He stated that he paid for two subjects at his education provider UBS but they were demanding the payment for a third subject that was another $1,700.  He claims he was unable to afford the subject at that time due to his health costs. 

34. The applicant states that he consulted the GP who prescribed him medicine that failed to work.  He said he was so sick that he couldn’t move.  The applicant said he didn’t tell anyone and didn’t inform his family as he didn’t want to upset his mother who he claims has a heart condition.  The applicant stated that after four weeks he consulted a new doctor who sent him to have blood tests where he discovered he had [Medical condition 1].

35. The applicant in his oral testimony said that he had a constant pain in his [specified body parts] and wasn’t recovering despite taking medicines.  He claims it was the hardest time of his life.  He claims to have contacted his education provider only to be informed they had already cancelled his enrolment.  He states he then tried to obtain admission at another provider that was offering the MBA course but was unable to obtain a COE. 

36. The applicant stated he was mentally upset and started smoking.  He said he sought advice from a psychologist friend of the family in Pakistan and took sessions via email and webcast. 

37. The Tribunal has considered the applicant’s claims concerning the circumstances in which the ground for cancellation arose but does not consider they constitute reasons not to cancel his visa. 

38. The Tribunal notes the applicant’s medical evidence he has provided and accepts that the applicant was diagnosed with [Medical condition 1] and accepts that it had an adverse impact upon his ability to study.  The Tribunal however does not consider that this diagnosis precluded him from ensuring he was either paying his tuition fees as required or seeking a deferral from his provider given his claimed health issues if his condition precluded him from studying. 

1. The applicant stated at the Tribunal’s hearing that his financial issues were caused entirely by his health costs.  The applicant however also stated that he had Overseas Student Health Cover (OSHC) as required as part of his Student visa conditions.  The Tribunal enquired as to why he was troubled by such costs if he had health insurance.  The applicant stated that at the time he wasn’t aware that not all medical centres accepted his health care card.  He said he was too ill to search for an appropriate centre.  He claims furthermore his insurance only covered 70% of his costs and didn’t cover medicine.    

2. The Tribunal is not satisfied with this explanation.  The applicant is responsible for his own health costs and, as required by his Student visa, to have health cover for the duration of the visa in order to meet the eligibility criteria for the grant of this Student visa.  The applicant was required to have maintained adequate health insurance during the period of his intended stay in Australia.  The applicant was also required to provide evidence that he had accessible and sufficient funds for the duration of his visa that would include his tuition fees and living costs on top of his health insurance.  The Tribunal does not consider the applicant’s claimed problems in meeting the payment of his tuition fees whilst also meeting his medical costs are legitimate reasons for the Tribunal not to cancel his visa.  The applicant agreed in response to the Tribunal’s questions that he received a letter from the Department when granted his visa that outlined the conditions of his visa and the consequences of non-compliance.  Sudden health costs should not have precluded the applicant from continuing to meet his study and enrolment obligations which includes being able to meet the cost of his tuition fees.  The Tribunal does not consider the applicant’s failure to meet the costs of his tuition fees – and maintain his enrolment satisfactorily - as a result of his health costs constitutes a reason for it not to cancel the applicant’s visa.    

3. The Tribunal has some sympathy for the applicant’s health situation.  Nevertheless the Tribunal is of the firm opinion that the applicant had the opportunity to approach his education provider to seek a deferral from his studies should his health issues been of such a magnitude that he was unable to continue his studies.  The applicant conceded to the Tribunal he was aware that a condition of his student visa was that he remain enrolled in a registered course of study.  He agreed he was aware that his enrolment ceased in August 2016 and conceded he had received correspondence from the Department when granted his Student visa which outlined the conditions of his visa and the consequences of non-compliance.  He agreed that he knew that not being enrolled in a registered course of study would impact upon his eligibility to continue to hold a Student visa.  The Tribunal considers the applicant had an obligation to ensure he continued to meet the requirements and conditions of his Student visa which he failed to do so.  The Tribunal gives his explanation as to why he failed to do so, whilst acknowledging his illness at the time, little weight. 

4. Similarly the applicant conceded he did not contact the Department to discuss his issues with enrolment and the fact he was no longer meeting the requirements of his Student visa.  He did not update the Department about his change in circumstances and made no efforts to do so.  The applicant claimed at the hearing he didn’t know what to do.  The Tribunal does not accept this explanation.  Student visa holders have an obligation to inform the Department when their circumstances change.  On the evidence outlined in the delegate’s decision record the applicant provided the Tribunal, the applicant’s circumstances did change.  The Tribunal notes furthermore that visa holders have an obligation to keep themselves informed of the requirements and conditions attached to their visa.  The Tribunal is not satisfied the applicant’s claimed ignorance of the requirements to inform the Department given his changed circumstances is a reason for it not to cancel the applicant’s visa.   

5. The Tribunal has considered the applicant’s mental and psychological health at the time of the breach of his visa condition and whether that impacted upon his ability to meet his obligations.  The Tribunal accepts that the applicant sought medical advice and ultimately treatment for his [Medical condition 1].  It accepts he was physically unwell.  The Tribunal does not however consider on the evidence that his mental and psychological condition precluded him from either maintaining an enrolment or seeking a deferral.  Indeed the Tribunal notes the applicant enrolled in and successfully studied a course at the vocational education level in 2017 which he is still enrolled in today.  The Tribunal does not consider his mental and psychological health precluded him from paying his tuition fees.  The Tribunal notes his claims that he sought psychological advice from his family friend in Pakistan. That may have been the case but it does not in the Tribunal’s opinion constitute a formal diagnosis or mental health plan.  The Tribunal has considered the applicant’s mental and psychological health but does not consider it constitutes a reason for it not to cancel his visa. 

6. The Tribunal when putting the applicant’s PRISMS record under s359AA noted the applicant’s enrolment in an MBA had been cancelled for non-payment of fees on multiple occasions.  Apart from the original cancellation of his enrolment for non-payment of fees which provided the ground to cancel his visa, the Tribunal noted the PRISMS record stated his MBA enrolment was cancelled for non-payment of fees on 20 February 2018, 5 June 2018 and 22 February 2019.  The applicant, when responding at the hearing, explained he thought enrolling in an MBA on each occasion would help in relation to his Student visa.  He stated that his representative however told him to complete his Advanced Diploma instead.  The applicant stated he had been given conflicting advice in terms of his enrolment after his visa was cancelled.  Some had told him to enrol in an MBA, others said enrol in a vocational course essentially in order to show a commitment to study.  The Tribunal gives the applicant’s actions no positive weight.  Obtaining an MBA COE on multiple occasions for what were visa rather than study reasons – and only to allow the enrolments to lapse for non-payment of fees – is in the Tribunal’s opinion disingenuous.  The purpose of the applicant’s visa was to study at the higher education level.  Taking out enrolments when there was no genuine intention to in fact pay the tuition fees and undertake the requisite studies at that time is in the Tribunal’s opinion deliberately misleading.  The Tribunal is of the opinion the applicant did not have the funds to actually pay his higher education tuition fees but enrolled in the courses repeatedly whilst knowing he would be unable to meet his obligations.

7. The Tribunal furthermore notes that the applicant commenced his vocational education studies for his Advanced Diploma in 2017.  He agreed that he obtained his enrolment after receiving the NOICC.  The Tribunal notes that the applicant has studied for this course since 2017 – seemingly successfully – and is on the verge of completing his studies for the award of the Advanced Diploma.  The Tribunal notes that the applicant has obviously been well enough to study – he claims the course is three days per week – since commencing the Advanced Diploma in 2017.  Given his health was robust enough to study for a vocational education course, the Tribunal is not convinced he was not well enough to either undertake his higher education studies as required as a condition to his visa or to seek a deferral.

8. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The Tribunal does not accept on the evidence before it that the circumstances in which the ground for cancellation arose were beyond the applicant’s control.  The Tribunal acknowledges the applicant’s diagnosis of [Medical condition 1] and accepts that did cause a degree of hardship.  Nevertheless the Tribunal does not accept that it precluded him from either maintaining an enrolment in a registered course of study at the higher education level or from seeking a deferral from his education provider if his illness was impeding him from his studies.  The Tribunal is not satisfied that the applicant’s illness precluded him from paying his tuition fees as required as part of his enrolment.  The Tribunal notes the applicant was well enough to enrol in a vocational course after receiving his NOICC in 2017 and he has studied since that period.  The applicant obtained multiple COEs for his MBA during this period so he could, in the Tribunal’s opinion, have attempted his studies at the higher education level. The Tribunal considers the applicant has had ample opportunity to rectify his status and recommence his studies at the higher education level.  The Tribunal notes his claims he had little understanding of the requirements attached to his visa and study but gives the claim little weight.  The Tribunal considers the applicant had an obligation to ensure that he continued to meet the conditions attached to his visa.  In relation to the circumstances in which the ground for cancellation arose, the Tribunal weights this matter in favour of cancelling the visa.      

   Past and present behaviour of the visa holder towards the Department 

9. The Tribunal has considered the past and present behaviour of the applicant towards the Department.  The Tribunal notes the applicant responded to the Department’s s.119 letter and gives this some positive weight.  On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

   Whether there would be consequential cancellations under s.140

10. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The applicant confirmed he had no dependents and no one else held a visa as a result of his visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

    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

11. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date.   However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa not to be cancelled. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.       

    Whether any international obligations that would or may be breached as a result of the cancellation

12. The Tribunal has considered whether there are 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 of the applicant’s visa.  The applicant does not have any children.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

    Conclusion

13. The Tribunal has considered the applicant’s circumstances individually and cumulatively.  The Tribunal is satisfied that the vast majority of considerations weigh against the applicant.  The Tribunal notes that visa holders have an obligation to ensure they meet the conditions attached to their visa which includes maintaining their enrolment at the appropriate level.  The Tribunal notes from the decision record the applicant supplied where he stated he was studying a more affordable vocational education course because he was unwell: the fact remains the applicant’s visa is for the study of a course at the higher-education level which he has failed to do.  The Tribunal considers the length of time the applicant was in breach of his visa conditions to be significant.  Whilst the Tribunal has some sympathy for the applicant, it is not satisfied that the issues encountered by the applicant are sufficient reason not for the visa to be cancelled. 

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

    DECISION

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

    Justin Owen
    Senior 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.