Akuthota (Migration)

[2024] AATA 4016

Akuthota (Migration) [2024] AATA 4016 (8 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sanjay Kumar Akuthota

REPRESENTATIVE:  Mr Harry Jasbir Kawal Singh Bhatia (MARN:1909871)

CASE NUMBER:  2317708

HOME AFFAIRS REFERENCE(S):          BCC2023/5550882

MEMBER:Senior Member D Connolly

DATE:8 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 08 October 2024 at 10:25am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – ground for cancellation conceded – discretion to cancel visa – no completed courses – after initial study at masters level, enrolled in vocational course in different subject area – father’s health and sister’s marital problems – new enrolments after contact by department and continuing study in generalist subject – family’s business and investment in applicant’s future, and applicant’s future plans – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 October 2023 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).

2. The delegate cancelled the visa pursuant to s 116(1)(b) of the Act on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.

4. The applicant was represented in relation to the review by a registered migration agent, who also attended the hearing.

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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

7. The applicant is a 28 year old male citizen of India. He was most recently granted a student visa on 11 March 2022 to enable him to continue with the courses of study in which he was enrolled. The visa was subject to among others, condition 8202.

   Did the applicant comply with Condition 8202?

8. 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).

9. The applicant’s visa was cancelled on the basis that he was not enrolled in a full time registered course and so had not complied for condition 8202(2)(a).

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record which includes the following information.

11. On 3 October 2023, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the applicant was not enrolled in a course of study. The applicant was informed that the Department has access to the Provider Registration and International Student Management System (PRISMS), which provides the Confirmation of Enrolment (CoE) and study records of international students registered to study in Australia. He was informed PRISMS indicated that he had not been enrolled in a registered course from 18 April 2022 to 24 September 2023 and therefore had not complied with the requirements of subclause (2)(a) of condition 8202. The applicant was informed that this may be a ground for cancellation of his visa and he invited to comment.

12. The applicant requested an extension of time to comment. The Department granted an extension of time.

13. The applicant responded, claiming that his visa should not be cancelled because he comes from a well reputed business family and a visa cancellation will bring unrest in the family and affect their reputation. He stated that a visa cancellation will make it hard for him to set up a decent career and it will ruin his aspirations.  He stated that he was a victim of poor education guidance, the VET system and COVID but claimed that he had consistently made efforts to get back to quality education at the post graduate level and had not given up on his dreams to make a career in the Civil and Construction sector. He stated that he had enrolled in courses to continue his studies in Australia.

14. The applicant provided to the Department evidence of applications to various institutes and enrolment in various courses. He provided information about his financial position, and a medical certificate dated 4 August 2022 which stated his father suffered from cerebrovascular disease. He provided CoEs for an Advanced Diploma of Civil Construction Design, a two-year course which started on 18 September 2023, and a Graduate Diploma of Management (Learning), a one-year course due to start on 26 September 2025. 

15. In considering the applicant’s response, the delegate had regard to the applicant’s PRISMS records which set out his study history in Australia. The delegate noted the applicant initially arrived in Australia on 22 February 2019 as a holder of a student visa to undertake a Master of Engineering degree over the next two years. He ceased study for the Master course and his enrolment was cancelled by the education provider in July 2019. PRISMS records indicate that he subsequently re-enrolled in Certificates III and IV in Commercial Cookery, a Diploma of Leadership, a Diploma of Hospitality Management and a Graduate Certificate in Management. The delegate noted the applicant completed a Diploma of Project Management on 17 April 2022 but failed to commence the Graduate Diploma of Management (Learning), on the scheduled date of 11 April 2022. PRISMS records indicate that the applicant then enrolled in an Advanced Diploma of Civil Construction Design in September 2023, commencing 18 September 2023 to 14 September 2025, and a Graduate Diploma of Management (Learning) from 26 September 2025 to 25 September 2026.

16. The delegate found the applicant’s non-enrolment in a registered course for 17 months was not in line with the purpose of a student visa. While acknowledging that he was, at the time of the delegate’s decision, enrolled in two registered courses, she noted the applicant only obtained these recent enrolments after he was contacted by the Department regarding his non-compliance. She accepted that the applicant and his immediate family may experience some emotional hardship if the visa is cancelled but noted that it would be open for the applicant to return to study at a later date. In respect of the applicant’s claim that he was a victim of poor education guidance and the VET system, the delegate was not satisfied the applicant provided a logical reason as to why he sought advice to stray from studying engineering and why he switched to Commercial Cookery then Project Management, if a career in engineering and civil construction is what the applicant wished to pursue. In respect of COVID, the delegate noted that the majority of COVID restrictions were well passed by the time the applicant’s enrolment was cancelled. Overall the delegate was satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

17. The Tribunal received an application for review from the applicant on 2 November 2023.

18. At the hearing the Tribunal discussed with the applicant the issue of whether he had complied with condition 8202(2)(a). He acknowledged that he was not enrolled in a registered course from 18 April 2022 until some time in September 2023. He indicated he understood why the Tribunal would then find that he had not complied with condition 8202(2)(a).

19. On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course for about 17 months. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

20. 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’.

    Circumstances in which ground of cancellation arose

21. In submissions to the delegate the applicant indicated poor education guidance, the VET system and COVID contributed to his non-compliance with condition 8202. He claimed that he consistently made efforts to get back to quality education at the post graduate level and had not given up on his dreams to make a career in the Civil and Construction sector.

22. The applicant’s representative has provided to the Tribunal written submissions as to the circumstances in which the ground for cancellation arose. He stated that in 2017 the applicant was awarded a Bachelor degree in civil engineering with first class distinction in India. He then worked as a site engineer for one year before coming to Australia to study a Master of Engineering (Civil & Infrastructure) in 2019 on a merit scholarship. He submitted that the applicant “completed his first trimester, passing 2 subjects, post which he met some agent who enrolled him in the VET sector in commercial cookery. Sanjay realised his mistake soon and started making attempts to get into post-graduation or a course of his choice but due to academic issues and COVID striking the world, he wasn’t able to get an admission. He claims he was stuck in a whirlpool of dodgy agents who enrolled him back-to-back in VET sector.”

23. The representative submitted that in June 2019, the applicant received his academic transcripts documenting he passed two units in the first semester. At the hearing the applicant confirmed that he also failed two subjects. He told the Tribunal that around this time he wanted to move to Sydney because he did not like the weather in South Australia so he went to an education agent.  The agent advised him not to move, stating the weather would change in the summer. Under the influence of others, he changed to the cookery course.

24. The representative submitted that the applicant received an offer from Torrens University in March 2020 to study for a Master of Business Information Systems. The applicant had to submit documentation but then COVID left everything in limbo and he could not make contact with his agent or the university. He found out the university had arranged online classes but he did not attend, feeling he was not on track and that online classes would leave him more confused. He looked for a course where he could study face to face. In June 2020 he was offered a place in the Graduate Diploma of Management (Learning). In March 2021 he applied for a student visa to study in the Diploma of Project Management at Stellar College. He sat an English test and was granted another student visa, the subject of this review, in March 2022. He submitted assessments for the Diploma of Project Management but the College did not update his records. In July 2022 the College sent him a course completion survey but they did not update his results or give him a certificate. He made applications to study with other education providers, in November 2022 and March 2023. He provided copies of course application forms, dated November 2022 and March 2023. During this period, his father was seriously ill and his sister had some marital issues which stressed him, as he and his sister are emotionally dependent on each other.

25. The representative submitted that in September 2023, the applicant was trying to enrol in a Master program. He wanted to study a course closely related to his field of study, engineering. He got a letter from the Campbell Institute before he got his NOICC. He enrolled in an Advanced Diploma of Civil Construction and Design, and a Graduate Diploma in Management.

26. The applicant provided a letter dated 13 September 2024 from the Campbell Institute confirming his enrolment in an Advanced Diploma of Civil Construction Design, which commenced on 18 September 2023. The Tribunal notes the CoE the applicant provided for the course enrolment confirms it was created on 25 September 2023.

27. The Tribunal notes the applicant also provided a CoE dated 3 March 2021 confirming that he was enrolled and due to commence the Graduate Diploma of Management (Learning) at Stellar College in April 2022. The delegate recorded that the enrolment was cancelled because he failed to commence the course. The Tribunal accepts the evidence set out in the delegate’s decision record, provided to the Tribunal by the applicant and not disputed by him, that the PRISMS records confirm the applicant did not commence the Graduate Diploma of Management (Learning) in April 2022.

28. The Tribunal has considered the applicant’s reasons for not commencing the Graduate Diploma of Management course as this led to the applicant’s 17 month period of non-enrolment. He claims to have completed the Diploma of Project Management, but that the College would not give him the certificate. He does not dispute that he did not commence the Graduate Diploma course. With respect to the circumstances leading to the non-compliance, the applicant told the Tribunal he had paid the fees to study for the Graduate Diploma of Management, to be commenced in April 2022, but he was too stressed because his sister was having marital problems and his father had heart issues. He said his father took three months to recover. The Tribunal notes however that he provided a medical certificate from India stating his father had a medical appointment on 4 August 2022 and would need three months to recover from a cerebrovascular accident, which apparently occurred on 4 August 2022. It specifies his father needs to recover from August 2022 to November 2022. The Tribunal notes this occurred four months after the applicant was to commence the Graduate Diploma course.

29. The Tribunal accepts the applicant may have been concerned for his sister, but it is not persuaded her circumstances would have prevented the applicant studying in Australia because he also stated how important it was to his father that he study in Australia and be awarded a qualification. It does not accept any concern he felt for his sister prevented him studying in Australia. He claimed also that his father has provided him with continuous financial support to enable him to study in Australia so there should not have been any financial obstacles to study. The Tribunal has considered his evidence about his father’s illness but notes the medical certificate provided indicates his father suffered the cerebrovascular accident (not a cardiac event) in August 2022, some four months after he was supposed to commence the course. It has also considered his oral evidence that he worked in paid employment during this time in food delivery service, for Menulog and Uber. He told the Tribunal he stopped that work 18 months ago (in March 2023) because he wanted to get back into his career and was trying to re-enrol.

30. The Tribunal finds the applicant’s evidence about the reasons he did not commence the course in April 2022 to be unpersuasive. It is of the view the applicant worked, at least from March 2022 to March 2023, as he was not so affected by his family’s circumstances as he has claimed. It is not satisfied his father’s illness or his sister’s marital problems prevented him from commencing his course in April 2022.

31. The Tribunal accepts that the applicant made an attempt to enrol in a registered course in November 2022. However it notes this was over six months after he failed to commence study in April 2022.

32. The applicant’s representative stated at the hearing that education agents had taken all the applicant’s money. The Tribunal is not persuaded that this occurred, however even if it did, it is not satisfied this was a circumstance that led to his non-compliance with condition 8202(2)(a) as it was his non-commencement of study, not failure to pay the fees that led to the cancellation of the enrolment in the Graduate Diploma of Management (Learning). It is also submitted he was misled by education agents and affected by the VET system. For the same reasons, the Tribunal is not satisfied this led to the applicant failing to start the course.

33. The applicant’s representative also claimed that a circumstance leading to the non-compliance was education providers’ offices being closed due to COVID. The Tribunal accepts COVID restrictions may have affected the applicant’s study in 2020 and 2021 but it is not satisfied this is the reason he was not enrolled until September 2023, after he failed to commence study in April 2022.

34. Overall the Tribunal is not persuaded that the reasons the applicant was not enrolled in a registered course from April 2022 to September 2023 were outside his control. It is not satisfied his sister’s marital problems or his father’s health led to his non-enrolment. It is of the view the circumstances leading to the ground for cancellation were matters the applicant could control. It finds his evidence of attempts to enrol in a course in the period April 2022 to September 2023 to be limited, suggesting he was not committed to engaging in study in this period.

35. Considering the relevant evidence overall, the Tribunal gives this factor weight in favour of exercising its discretion to cancel the visa. 

    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

36. In submissions to the delegate the applicant stated that his goal now is to get a quality education as he dreams of a career in the civil and construction industry.

37. The Tribunal notes the applicant’s purpose for coming to Australia in 2019 to complete a Master of Engineering degree over the next two years, having completed a Bachelor degree in civil engineering with first class distinction in India. His oral evidence is that he failed two subjects in the Master course. He then enrolled in a Certificate III in Commercial Cookery. His representative submitted that “in August 2019, Sanjay moved to VET sector courses as he relied on a good future scope in Cookery, advised by his education agent.” The Tribunal explained to the applicant that it may find it difficult to reconcile why someone with his qualifications, educational background and claimed reasons for travelling to Australia would transfer from a Master course to a Certificate III Cookery course. The applicant indicated his study was affected by problems with accommodation, no friends and the weather affecting his health. He wanted to move to Sydney, however he did not move because he was advised not to by an education agent. However after he started the cookery course he then realised he is an engineer and he was moving out of his area of interest. The Tribunal is of the view this does not adequately explain his transfer from the Master course to a Certificate III Cookery course, given his submissions that he is in Australia because he wants to advance his career in civil construction and this raises concerns about his commitment to genuine study in Australia.

1. The applicant’s representative submitted that the applicant now wishes to remain in Australia to complete an Advanced Diploma of Civil Construction Design. He has also provided evidence of enrolment in a Graduate Diploma of Management (Learning) commencing in September 2025. The applicant’s representative has submitted that the applicant is currently studying and progressing well in the Advanced Diploma of Civil Construction Design and has completed six units. He provided evidence from India that there is the financial capacity to continue the study.

2. The applicant’s representative has also submitted that “as a future Civil Engineer, Sanjay is excited about utilizing advanced computer-aided design (CAD) tools to create, refine, and perfect designs for crucial infrastructure projects. His role will involve designing, planning, and overseeing the construction of various types of infrastructure, including buildings, bridges, roads, and railways…. Moreover, Sanjay is particularly interested in embracing new technologies that are revolutionizing the construction industry, such as Building Information Modelling (BIM), 3D printing, and smart infrastructure solutions. His focus on these innovative tools will reflect the industry’s shift towards more efficient and cutting-edge construction methods.”

3. The applicant provided a copy of a letter from Campbell Institute dated 13 September 2024 stating that the applicant commenced an Advanced Diploma of Civil Construction Design in September 2023 due to be completed on 14 September 2025. It states that it does not confirm his attendance or course completion, and that he has paid fees until 10 November 2024 and has $7,200 left to pay towards the course. It states he has made good course progress. The Tribunal notes none of the topics studied in the Advanced Diploma cover CAD tools or BIM.

4. The Tribunal asked the applicant why someone who wants to have a career in civil and construction industry wants to do general courses such as the Advanced Diploma and Graduate Diploma of Management (Learning). He stated, in India there are separate courses for CAD and modelling which he can do. He wants to do the Graduate Diploma in Australia for its innovation and he will learn about health and safety. 

5. The applicant told the Tribunal that the reason he wants to remain in Australia is to complete the Advanced Diploma as he is the only son and his parents expect him to complete this course.  The Tribunal noted the applicant’s evidence that he already has a Bachelor degree in civil engineering with first class distinction, and asked why in those circumstances he would benefit from an Advanced Diploma, and whether that would meet his parents’ expectations. He claimed that he wanted to start his career from the basics. The Tribunal indicated it might find this explanation somewhat unpersuasive given his study history in Australia. He indicated he wants to finish the Graduate Diploma of Management (Learning) as it is a superior course and he will know more about running a business. The Tribunal asked why he wants to pursue management when he does not appear to have much relevant work experience in his chosen field. He indicated he tried to get a part-time job in the industry but employers ask for Australian qualifications. He said however that he wants to complete the study and then return to India.

6. The Tribunal explained that it might not consider it favourable that the applicant is pursuing Diploma qualifications when he already has a relevant Bachelor degree in the industry in which he claims he wishes to work. The applicant acknowledged he is not pursuing a degree but indicated the Graduate Diploma might give him more knowledge and help him care for employees.

7. When asked about his study history, the applicant told the Tribunal that he had not finished any courses in Australia. He then clarified this by stating that he had actually finished the Diploma of Project Management course that he commenced in March 2021 but the education provider refused to issue a certificate. When asked why this might be the case he indicated he paid the fees after completion of the course. He had no other explanation as to why they would not issue the certificate. He agreed that since he arrived in Australia in 2019 he had only completed the Diploma of Project Management, which is not consistent with his reasons for coming to Australia.

8. The applicant claimed that he now wants to finish the Advanced Diploma and the Graduate Diploma and return to India.

9. The Tribunal has considered the evidence in relation to this factor. It finds it somewhat concerning that the applicant wants to complete an Advanced Diploma course when, on his own evidence, he already holds a Bachelor degree in civil engineering with first class distinction. While the Tribunal accepts that the applicant has completed six units in the Advanced Diploma course, it is not satisfied he will gain new knowledge in the Advanced Diploma course that he does not already have from his Bachelor degree, or expertise in the subjects he claims to be interested in. The Tribunal is also not persuaded by the applicant’s explanation for undertaking the Graduate Diploma in Management (Learning), a general management course, given his claim to want to work in the civil and construction industry and utilize CAD tools to create, refine, and perfect designs for crucial infrastructure projects, and BIM, 3D printing, and smart infrastructure solutions. It notes his only relevant work experience is the year he worked in India in 2018. It is not satisfied he needs management knowledge in the foreseeable future, given his lack of relevant work experience. It is of the view the applicant enrolled in these courses primarily for the purposes of avoiding a visa cancellation.

10. The Tribunal is not satisfied there is any compelling need for the applicant to remain in Australia. On his own evidence he can do the CAD and BIM modelling courses in India. It is not persuaded the Advanced Diploma, or the Graduate Diploma in Management (Learning) will enhance his career prospects in India in the field in which he indicates he wants to work.

11. Overall the Tribunal gives this factor some weight in favour of exercising its discretion to cancel the visa. 

    The extent of compliance with visa conditions

12. Based on the delegate’s decision record, provided to the Tribunal by the applicant, the applicant did not comply with condition 8202(2) as he was not enrolled in a registered course of study from April 2022 until September 2023 when he enrolled in the Advanced Diploma course. The Tribunal finds the period of non-enrolment to be significant and concerning. It finds the breach of condition 8202(2)(a) is significant as this condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

13. The applicant claimed he has not worked in Australia since March 2023 and that he has not breached other visa conditions. There is no evidence before the Tribunal that he has breached other visa conditions.

14. Overall, the Tribunal gives this factor some weight in favour of exercising its discretion to cancel the visa.

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

15. The applicant has submitted he comes from a well reputed business family and a visa cancellation will bring unrest in the family and affect their reputation. He stated that a visa cancellation will make it hard for him to set up a decent career and it will ruin his aspirations. The applicant’s representative has submitted the applicant will go back to India with a tag of visa cancellation and be stigmatised. He also claimed that the family has invested significantly in his education abroad, demonstrating their commitment to his study. Also the applicant is the only son so they have high expectations of him.

16. The Tribunal is not persuaded anyone in India, apart from his family needs to know about a visa cancellation so it is not satisfied he will be stigmatised. The Tribunal accepts the family may be disappointed by the applicant failing to complete the qualification for which he was granted a student visa but it is not persuaded this will cause the applicant or his family any significant hardship.

17. In his oral evidence the applicant told the Tribunal if he does not finish his studies here he will have no certificate and he will not be able to start his career. The Tribunal does not accept this as on his own evidence he already has a Bachelor degree with first class distinction in engineering. It does not accept it will ruin his aspirations, as on his own evidence he can do other related courses in India if he needs further qualifications.

18. The applicant’s representative has submitted a visa cancellation could lead to social ostracism and further complicate the applicant’s reintegration into the family business (his father runs a grocery store). As it has found the Tribunal is not satisfied anyone in India outside his family needs to know about his visa status. Given the applicant’s evidence that he wishes to work in the civil and construction industry and he has a Bachelor degree in engineering, it is not satisfied a visa cancellation will cause hardship due to its impact on his reintegration into working in the family’s grocery store.

19. The applicant’s representative has submitted that a visa cancellation could result in the applicant suffering significant emotional and psychological strain, have long term implications for his mental health and impact the overall quality of his life and future endeavours. He has claimed nobody will hire him in India and he will not be able to get visas to other countries. The Tribunal is not satisfied on the evidence before it that a visa cancellation will have those impacts. It is of the view the applicant’s representative is speculating about possible hardship rather than the likely degree of hardship that may be caused by a visa cancellation.

20. The applicant provided evidence that his family has financial resources sufficient to fund his study in Australia. He told the Tribunal his father has been supporting him continuously since he has been in Australia and that he stopped working about 18 months ago. He provided evidence that he has paid his course fees up to November 2024. The Tribunal is satisfied the applicant’s family has financial resources and the applicant and his family will not suffer any degree of financial hardship if the visa is cancelled.

21. Overall the Tribunal gives this factor minor weight against exercising its discretion to cancel the visa.

    Past and present behaviour of the visa holder towards the department

22. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past.

23. The Tribunal gives this factor neutral weight.

    Whether there would be consequential cancellations under s 140

24. The applicant does not have any dependents on his student visa. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled.

25. The Tribunal gives this factor neutral weight.

    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

26. There are mandatory consequences if the applicant’s visa is cancelled, including possible detention and removal from Australia, as well as difficulties in obtaining any further visas.

27. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and he would have difficulties in obtaining any further visas in Australia, following the expiry of his student visa. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s ability to make a valid application for any visa other than those prescribed in reg 2.12.

28. When asked by the Tribunal whether he would leave Australia voluntarily if the visa is cancelled, the applicant stated he would leave voluntarily as the mistake was his. The Tribunal is satisfied it is highly unlikely the applicant will be detained.

29. The Tribunal accepts the applicant’s evidence that he wishes to remain in Australia to complete the courses in which he is currently enrolled. He indicated he then wants to return to India. The Tribunal accepts that cancellation would have further consequences and these would limit the applicant’s options to immediately return to Australia or apply for a different kind of visa. However these are the intended and legitimate consequences of a visa cancellation. It also notes the applicant’s oral evidence that once he has finished the study he wants to return to India to get his career back on track so it is not persuaded the applicant intends to apply for other visas in Australia.

30. The Tribunal gives this consideration neutral weight.

    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 

31. There are no children who would be affected by a visa cancellation.

32. When asked if the applicant fears returning to India, he indicated his concern relates to the family’s disappointment. The applicant did not claim to fear harm in India except embarrassment and concerns about his career.

33. There is no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

34. The Tribunal gives this consideration neutral weight.

    Conclusion

35. The Tribunal has considered the applicant’s circumstances individually and cumulatively. There are a number of factors for which the Tribunal gives neutral weight. The Tribunal is satisfied that there are factors that favour it exercising its discretion to cancel the visa, being the circumstances in which the ground for cancellation arose, his purpose for remaining in Australia, and the extent of his compliance with visa conditions. The Tribunal accepts the applicant wishes to remain in Australia to finished the courses in which he has enrolled but it is not persuaded he has a compelling need to remain here. The Tribunal is not persuaded those courses will enhance his career prospects as the applicant has indicated, given he already has a Bachelor degree in his chosen field. The Tribunal finds a period of 17 months of non-enrolment to be significant and it is not satisfied that he has adequately explained his non-compliance. It finds the breach of condition 8202(2)(a) is significant as this condition goes to the core purpose of the grant of a student visa, that is, to study in Australia. The Tribunal accepts the applicant’s family will be disappointed, particularly given the applicant has been in Australia since 2019 and did not complete the Master course, his reason for coming to Australia. It considers the applicant and his family may suffer some minor hardship, however it is not satisfied the hardship concerns he has outweigh the factors in favour of cancellation.

36. Considering the circumstances overall, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Denise Connolly
    Senior 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.