Ali (Migration)

[2020] AATA 4720

Ali (Migration) [2020] AATA 4720 (28 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yasir Ali

CASE NUMBER:  2001169

HOME AFFAIRS REFERENCE(S):          BCC2019/3503279

MEMBER:Frank Russo

DATE:28 August 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2020 at 1:10pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course – applicant changed to Vocational courses – applicant’s wife’s illness and death – applicant’s English capacity – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not maintained enrolment in a registered course at the same level as, or higher than, the registered course in relation to which his visa was granted, and therefore no longer met the requirements of sub-clause 8202(2)(b) of Schedule 8 to the Migration Regulations 1994 (the Regulations). 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 is a 29-year-old national of Pakistan. The Student visa was granted in respect of the applicant’s enrolment in a Master of Information Technology.

4. The Tribunal notes that the application for review was listed for a telephone hearing on 29 July 2020, however the Tribunal was unable to proceed with the hearing on that day and the hearing was therefore rescheduled to a new date.

5. The applicant appeared before the Tribunal by telephone on 11 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

6. The applicant was represented in relation to the review by his registered migration agent, although his agent did not attend the hearing.

7. 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

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

9. In addition to his application form and the reasons for decision of the delegate, the applicant provided the Tribunal with the following additional documents:

   a.Copy of notification of the delegate’s decision;

   b.Copy of the applicant’s passport photo page;

   c.Responses to hearing invitations;

   d.Undated submission from the applicant’s agent (‘Written arguments supporting the application for review of decision made by the delegate of the Minister for Home Affairs’), provided to the Tribunal on 28 July 2020;

   e.Confirmation of Enrolment (CoE) for the Diploma of Leadership and Management at the Institute of Business and Management Australia (IBMA) from 5 November 2018 to 1 May 2020, created on 30 October 2018;

   f.Certificate of completion if units of competency in the Diploma of Leadership and Management, issued by IBMA on 8 July 2020;

   g.Applicant’s marriage certificate, dated 9 October 2019; and

   h.Death certificate of the applicant’s wife, recording a date of death of 4 January 2020.

10. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has read and had regard to the documents contained within the Department’s file. In particular, the Tribunal notes that the Department file contains an email response from the applicant’s agent, dated 20 December 2019, in response to the Notice of Intention to Consider Cancellation (NOICC) of the visa that was issued by the Department. This response attaches the following documents, which the Tribunal has read and had regard to:

    a.A covering letter from the applicant’s agent;

    b.Statutory declaration signed by the applicant on 20 December 2019;

    c.Statutory declaration from the applicant’s friend, Mr Ameer Abule Hassan, declared on 20 December 2019, and copy of his Australian passport photo page; and

    d.Copies of the CoE for the Diploma of Leadership and Management, marriage registration certificate and applicant’s passport photo page, copies of which have also been provided to the Tribunal.

    Did the applicant comply with Condition 8202?

11. 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)

    ·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: 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).

12. The Tribunal notes that under 8202(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.

13. In the present case, the applicant’s visa was cancelled on the basis that the applicant had not maintained enrolment in a registered course at the same level as, or higher than, the registered course in relation to which his visa was granted. More particularly, the visa was cancelled because the applicant was not enrolled in a Masters degree course (AQF level 9) for a period in excess of 20 months, when the initial grant of the Student visa was for the applicant to gain a Master-level qualification.

14. The applicant was not enrolled in a course at AQF level 10, and therefore the consideration in 8202(3) is not relevant.

15. The applicant gave evidence at the hearing that he arrived in Australia on 24 December 2017 to study a Master of Information Technology (Masters course) at the University of Melbourne. He gave evidence that he did not commence the Masters course. He told the Tribunal that when he arrived in Australia his English was weak, and the level of English required for the Masters course was very high, so he instead enrolled in a Diploma of Leadership and Management at IBMA. He gave evidence that he completed two units at IBMA and the left in 2019. He stated that he could not remember the exact month when he ceased studying at IBMA, but indicated that he may have left in April or May 2019. The applicant stated that he could not complete the course because he married an Australian citizen, who became sick, which required him to look after her. The applicant stated that he did not enrol in any other courses after ceasing his studies in the Diploma of Leadership and Management.

16. The Tribunal notes that the Department file contains copies of the applicant’s enrolment record from the Provider Registration International Student Management System (PRISMS) database. However, the Tribunal considered the account the applicant provided regarding the courses he had enrolled in was consistent with the information contained in his PRISMS enrolment record. Therefore, for the purpose of determining whether the applicant had complied with condition 8202, the Tribunal relied on the oral evidence provided by the applicant at the hearing, and therefore did not need to put the information contained in his PRISMS enrolment record to him at that point of the hearing. The Tribunal notes that it subsequently used the process set out in s.359AA of the Act to put certain information to the applicant from his PRISMS record, which may have been relevant to the circumstances in which the ground for cancellation arose, and the Tribunal has set out details in its reasons regarding that particular factor.

17. The applicant provided the Tribunal with a copy of the delegate’s reasons for decision and confirmed at the hearing that he had read and understood the reasons for decision. According to the delegate’s decision, the applicant’s enrolment in the Masters course was cancelled by the education provider on 12 April 2018. On the applicant’s evidence he did not commence his studies in the Masters course. The applicant confirmed that as he did not maintain enrolment in a registered course at the same level, or at a higher level than the registered course in relation to which the Student visa was granted, he accepted that there are grounds for the cancellation of his visa.

18. On the basis of the information contained in the delegate’s reasons for decision and the oral evidence given by the applicant, the applicant was not enrolled in registered course at the same level, or at a higher level than the registered course in relation to which the Student visa was granted, from 12 April 2018 until the date of the delegate’s decision on 20 January 2020. Accordingly, the applicant has not complied with condition 8202(2)(b).

    Consideration of the discretion to cancel the visa

19. 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

20. The applicant told the Tribunal that his reason for travel and stay in Australia is for study and for the purpose of his education. The applicant stated that he came to Australia to study the Masters of Information Technology, but the level of English required for the course was very high, which is why he did not commence this course and instead enrolled in the Diploma of Leadership and Management. The Tribunal noted that the applicant gave evidence that he studied the Diploma of Leadership and Management for only 3 months before ceasing this course, and that he has not provided the Tribunal with evidence of any other confirmations or enrolments or offers of enrolment. The Tribunal questioned the applicant as to his plans if the Student visa were not cancelled. The applicant indicated that he would study. When questioned about what course of study he would enrol in, he indicated the Diploma of Leadership and Management, which he described as the course of his ‘own choice’.

21. The Tribunal also notes that in a statutory declaration which the applicant provided to the Department, which he declared on 20 December 2019, he requested that the Department let him continue studying the Diploma course.

22. The Tribunal notes that the grant of the Student visa was to enable the applicant to gain a Masters-level qualification in Australia. On the applicant’s own evidence he did not commence the Master of Information Technology or any other Masters-level course, and instead enrolled in a Diploma course, three AQF levels below the Masters level. The applicant provided evidence that he has completed two units of the Diploma course. On his own evidence, the applicant’s purpose in staying in Australia is now to continue his studies at the Diploma level. On this basis, the Tribunal finds that the applicant’s purpose for his stay in Australia is no longer in line with the purpose for which the Student visa was originally granted.

23. While the Tribunal notes the applicant’s claim that his purpose for remaining in Australia continues to be for the purpose of study, it notes that since his arrival in December 2017, the only progress he has made in regards to this stated purpose is the completion of two units within the Diploma course. There is no evidence to indicate that the applicant has been unable to enrol in a course of study while holding a Bridging visa. The applicant is not currently enrolled in a course of study or have an offer of enrolment. On his own evidence, the applicant was enrolled in the Diploma course for only 3 months. While the Tribunal has considered the applicant’s evidence for not commencing his initial course and for not continuing with the Diploma course (as set out below in my reasons regarding the circumstances in which the ground for cancellation arose), the Tribunal considers the applicant’s enrolment history to date does not support his claim that his intention in staying in Australia is for the purpose of study. Accordingly, I give this factor only little weight against cancelling the visa.

    The extent of compliance with visa conditions

24. The applicant was not enrolled in a course of study at the Masters level (AQF level 9) from 12 April 2018 until the delegate’s decision on 20 January 2020, a period of over 21 months. On the applicant’s evidence, he did not commence the Masters course which was the subject of the Student visa. The Tribunal considers the length of this breach to be a significant breach of a condition of the visa. The applicant told the Tribunal that he knew the conditions of his visa and that he wanted to study Information Technology, but it was very hard. There is no evidence to indicate that the applicant took any form of corrective action to address the issue of non-compliance with this condition of his visa by lodging another Student visa application for a course of study at the vocational level or by taking any steps to enrol in or obtain an offer to enrol in a Masters-level course.

25. The applicant also told the Tribunal that he was aware of the conditions of his visa which required that he maintain enrolment in a course of study, as well as the work limitation condition. When questioned whether he had complied with these conditions, the applicant responded ‘definitely’. The Tribunal raised concern with the applicant that the delegate’s reasons for decision noted that he was not enrolled in any course of study between 12 April 2018 and 30 October 2018, a period of over five months, and that this may indicate that he was not compliant with condition 8202(2)(a) (the enrolment requirement). The applicant indicated that he obtained enrolment in the Diploma of Leadership and Management at IBMA, commencing on 5 November 2018.

26. When questioned whether there were any reasons why he did not enrol in another course of study prior to that, the applicant responded that he ‘got an understanding with a girl around that time’. The Tribunal questioned the applicant as to when he met the woman he was referring to, whom he later married. The applicant responded February 2019. The Tribunal raised that February 2019 was after his enrolment in the Diploma of Leadership and Management, and therefore was not a reason for his delay in enrolling in a course of study. The applicant then stated that he came to Australia on 24 December 2017 and met the woman in February 2018. The Tribunal notes that the applicant had stated ‘2019’ in English in his first response to the Tribunal’s question, and therefore excludes translation error as a possible reason for the applicant’s conflicting evidence regarding the date when he first met his wife. The Tribunal also notes that later in his evidence, the applicant confirmed that his relationship was not a reason for his failure to commence the Masters course, but it was a reason why he did not continue with the Diploma course. The Tribunal therefore does not accept the issues associated with the applicant’s relationship and the health of his wife, which are set out below, as a reason for non-compliance with the enrolment condition from 12 April 2018 to 30 October 2018.

27. The applicant gave evidence that he has been working 20 hours per week in a factory. There is no information before the Tribunal to suggest that the applicant has breached the work limitation condition, and the Tribunal has regard to this in assessing the weight it gives to this factor as a whole. However, given the significant period of the breach, the Tribunal gives this factor weight in favour of cancelling the visa.

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

28. When asked about the hardship which may be caused by the cancellation of his visa, the applicant stated that he is the youngest son in his family and that he came to Australia to study, and that it was not his fault that he fell in love with someone. He stated that his purpose was to study, and that if the Tribunal can re-enforce his visa he will be able to study.

29. When the Tribunal asked the applicant about the hardship he would face a second time, he stated that it will be difficult for both him and his parents, as his parents will say that they invested a lot of money on him and it will result in conflict.

30. The Tribunal noted at the hearing that in the applicant’s statutory declaration, dated 20 December 2019, he stated that he had recently married an Australian citizen , and that if his Student visa is cancelled his relationship with his wife ‘will be disturbed’ and he will face further hardship. The Tribunal noted that according to the information which the applicant provided, his wife since passed away in January 2020. The Tribunal asked the applicant whether there was any other hardship that it should be aware of. The applicant responded that he wants to be able to study, as that is the purpose for which he came to Australia.

31. The applicant gave evidence that he has a Bachelor of Science in Software Engineering from Pakistan, which he completed in 2016. Although the visa cancellation would mean the applicant would be unable to undertake a Masters level course at present in Australia and thus progress academically, the Tribunal notes the applicant never commenced the Masters course and now proposes to study a Diploma-level course, at a level below his existing Bachelor degree qualification. The applicant has not provided any credible information regarding how the Diploma course will assist him with his future plans.

32. The Tribunal accepts however that that the applicant and his family would encounter some hardship as a result of the cancellation of the visa, in particular there may be concerns regarding the loss of investment of the applicant’s time and his parents’ financial investment in his studies, and this may also result in family conflict. The Tribunal notes that the applicant’s relationship has now ended as a result of the death of his wife, however the Tribunal has also considered the potential psychological and emotional impact on the applicant if the visa was cancelled following the death of his wife, even though this was not raised by the applicant. Overall the Tribunal gives this factor some weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

33. The applicant told the Tribunal that when he came to Australia he ‘wanted to do the Masters course, but it was really hard.’ He stated that his English wasn’t ‘as high as needed’ and then he met his future wife. He stated that he then had to support his future wife, that he was supporting her financially as she in effect became a housewife. He stated that she also wanted him to spend more time with her, such as asking him to take her places and on picnics. He stated that she was very ill and suffered asthma, and that when he married her, in October 2019, he felt more obliged to look after her. He stated that his wife put to him whether he would go to college or be with her. He told the Tribunal that he really wanted to study, but he wasn’t able to under these circumstances. He stated that his wife told him that he had married her, and therefore had to stay with her and ‘leave college’.

1. When questioned whether there were any other circumstances which were beyond his control, the applicant responded that there was nothing else, and that it was just these two things.

2. The Tribunal also notes that in the statutory declaration the applicant provided to the Department, made on 20 December 2019, the applicant declared that when he came to Australia he found the standard of education and of English was very high compared to that in Pakistan and that ‘The Master Degree looked harder to me and I changed to Diploma of Leadership and Management.’

3. The Tribunal raised with the applicant a number of additional claims which were made in documents provided by the applicant to the Tribunal or the Department, and whether they were relevant to the circumstances in which the ground of cancellation arose. The Tribunal raised that in his statutory declaration provided to the Department, the applicant also claimed that he was ‘mentally disturbed’ as a result of realising the Masters course would be very hard for him, and that he also suffered homesickness. The Tribunal questioned whether the applicant had received or sought any treatment regarding a psychological or medical condition. The applicant responded that there was a lot of pressure on his mental health because he got married to an Australian woman, and after that he had to look after her. The applicant confirmed that he did not seek any medical treatment regarding such a condition, and that he only discussed it with some friends and ‘took tablets for pressure’. When questioned about any medication which he took, the applicant stated that he did not remember the name of the tablets, that they were not prescribed to him or obtain them from a chemist. He stated that he took the tablets to relieve pressure from his brain and that he obtained them from a friend of his as he did not have a prescription. He stated that he ‘was not very sick or unwell’, but there was always pressure on his mind regarding what he should do and how he should cope. Given there are no medical or psychological reports in support of this claim, the Tribunal gives little weight to this claim.

4. The Tribunal questioned the applicant as to whether financial difficulties were part of the circumstances in which the ground of cancellation arose. The applicant stated that he does not have any financial difficulties because his uncle has a friend who is an Australian citizen, and he was paying for the applicant’s studies. The applicant stated that his uncle then repaid his friend from India. The Tribunal noted that the statutory declaration of Mr Hassan states that he is a close friend of the applicant and knows that the applicant had financial difficulties and was feeling homesick, and therefore became mentally disturbed as he ‘could not carry on his harder degree.’ In response the applicant stated that sometimes he ‘had these issues’, but his uncle was paying his friend for the cost of the applicant’s studies and his family was supporting him.

5. The Tribunal raised with the applicant that in the written submission/arguments provided by his agent, his agent states that ‘Due to sickness of his wife in Australia, his studies got disrupted and this became the reason for cancellation of his student visa.’ The agent’s submission also states that the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa from the Department on 6 December 2019, that the applicant’s wife died on 4 January 2020, and the delegate’s decision to cancel the visa was made on 20 January 2020. The Tribunal questioned the applicant as to whether these events were relevant to the cancellation of his enrolment in the Masters course in April 2018.

6. The applicant responded that his wife was very unwell, and that two months before her death she ‘got really sick’. He however confirmed that these events were not relevant to the cancellation of his enrolment in the Masters course. He responded that the cancellation of his enrolment was because of the ‘English barrier’ and because he could not cope with the language. He stated that he later on ‘quit college’ (his enrolment in the Diploma of Leadership and Management) because his wife became ill.

7. Adopting the procedure in s.359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment record from the PRISMS database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal, namely that it may contain information relevant to the circumstances in which the ground of cancellation arose. The Tribunal put the relevant information to the applicant, noting that according to the information, his enrolment was cancelled on 22 January 2018 for ‘Non-commencement of studies’, which is consistent with his oral evidence, however it also indicates that his enrolment in the Masters course was cancelled on 12 April 2018 for ‘Disciplinary reasons’. The Tribunal noted that the reference to cancellation for disciplinary reasons may indicate that the applicant commenced the Masters course and his enrolment was subsequently cancelled again because of disciplinary action taken by the university.

8. The Tribunal explained to the applicant the consequences of relying upon the information, and that the information may be the reason or part of the reason for affirming the Delegate’s decision. When asked whether he understood the relevance of the information from this document and the consequences of the Tribunal relying upon it, the applicant stated that he did not. The Tribunal repeated the information and again explained the relevance of the information and the consequences of the Tribunal relying upon it. The applicant again stated ‘No’ in response to the Tribunal’s question regarding whether he understood the information. The Tribunal considered that it had sufficiently explained the information and the relevance of the information to the applicant, and considered that the applicant’s responses may indicate that he disagreed with the information or was confused by the information which had been provided to him. Accordingly, the Tribunal asked the applicant whether he had any comments or wished to respond to the specific information put to him from his PRISMS enrolment record and advised that he may be granted time to comment on or respond to the information if needed.

9. The applicant indicated that he wished to respond to the information at the hearing. The applicant then asked the Tribunal what sort of disciplinary action the record was referring to. The Tribunal indicated that the record did not indicate this, and asked the applicant whether he had any awareness of what the ‘disciplinary action’ may refer to or whether he had any explanation as to why this was recorded as a reason for the cancellation of his enrolment. The applicant indicated that he had no explanation for this reference and confirmed that he did not commence the Masters course.

10. The Tribunal accepts that the applicant sounded genuinely confused by the information put to him regarding ‘disciplinary reasons’ as a reason for the cancellation of his enrolment in the Masters course. There is no further information before the Tribunal regarding any such disciplinary reasons, and the Tribunal notes the applicant’s evidence that he did not commence the Masters course. The Tribunal notes however, that the written submission/’written arguments’ of his agent suggest that the applicant had commenced the Masters course. This document submits ‘[The applicant] … felt it very hard to continue the Master studied and therefore he shifted to Diploma of Leadership …’ The Tribunal also notes that the statutory declaration of Mr Hassan states the applicant ‘could not continue his studies.’ The Tribunal however notes there is nothing in the applicant’s statutory declaration which suggests that he commenced the Masters course.

11. Based on the evidence and information before it, the Tribunal gives no weight to the reference to ‘disciplinary reasons’ within the applicant’s PRISMS record and does not rely upon it in making its decision. Instead the Tribunal accepts the applicant’s evidence that he did not commence the Masters course.

12. The Tribunal questioned the applicant as to how he had reached the view that he did not have the English language skills to commence the Masters course. The Tribunal raised concern regarding how such a decision was reached without the applicant commencing studies in the Masters course, particularly in light of the acceptance of his application for enrolment, which would have required the applicant to meet English language and other course admission requirements. The applicant responded that he judged this on the basis of the people in the community whom he met after he arrived in Australia. He stated that it was hard for him and that he found it hard to understand them. He stated that he spoke to a friend who had studied in Australia, who said it was very hard to study here because of the English language requirements for a Masters-level course.

13. The Tribunal gives little weight for this as a reason for the applicant not commencing the Masters course and does not consider it to be evidence of extenuating circumstances which were beyond the applicant’s control. The applicant’s Student visa was granted in respect of his enrolment in a Masters-level course in Australia, and it can reasonably be expected that an applicant for enrolment in such a course would turn their mind to the English language requirement for such a course, as well as have to satisfy the education provider that they possessed sufficient English language ability as part of the application process. On the oral evidence provided by the applicant, he did not commence the Masters course and then find that the he did not have sufficient English language ability to undertake his studies. There is no evidence that the applicant contacted the university or spoke to course advisers about his concerns regarding the difficulties he presumed he would face with his course, nor about any actions he could take, such as enrolling in an English language course or deferring his studies or returning to his home country until he was in a position to meet the conditions of his visa. Rather, the applicant chose not to commence the Masters course and chose to remain in Australia despite not meeting visa condition 8202(2)(b). There is no evidence that the applicant contacted the Department regarding his change in circumstances or to indicate that he took any corrective action to resolve non-compliance with this visa condition by lodging a Student visa for a different AQF level.

14. While the Tribunal notes that the applicant enrolled in a Diploma of Leadership and Management on 5 November 2018, and was also approved to commence an Advanced Diploma of Leadership and Management, the Tribunal notes that on his evidence the applicant studied this course for only three months before ceasing to attend, and that this enrolment commenced over five months after the cancellation of his enrolment in the Masters course. This enrolment was three AQF levels below that of the Masters course for which his visa was granted, and therefore the Tribunal gives it little weight as an attempt to remedy the breach of the visa condition.

15. As noted above, the applicant confirmed in his oral evidence that his relationship with his wife and her health issues did not have any bearing on the cancellation of his enrolment in the Masters course, though he claims they were a reason why he was unable to continue studying the Diploma of Leadership and Management. The Tribunal accordingly does not consider the evidence regarding the applicant’s relationship and his wife’s health issues to be matters relevant to the circumstances in which the ground for cancellation arose.

16. Having considered the applicant’s evidence as a whole, and my findings set out above, I do not accept that the circumstances that resulted in the applicant not complying with the condition attached to his Student visa were beyond the applicant’s control. Accordingly, I give this consideration weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

17. The applicant did not raise any matters specific to this factor in his oral evidence. The Tribunal notes that the applicant responded to the NOICC issued by the Department. There is no evidence that the visa holder has been uncooperative with the Department, and he has been responsive to the Department’s communications. I give this some weight against cancellation of the visa.

    Whether there would be consequential cancellations under s.140

18. The applicant confirmed at the hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s 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

19. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The applicant confirmed at hearing that he understood these mandatory legal consequences and he did not have any comments to make. The Tribunal notes that the mandatory legal consequences may impact the applicant’s ability to undertake the further study that he stated he will undertake if the visa is not cancelled, however notes that his enrolment record to date does not support his claim that he is genuinely interested in obtaining this qualification. The Tribunal gives this a little weight against cancelling the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

20. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa

    Any other relevant matters

21. The Tribunal asked the applicant whether there are any other relevant matters which the Tribunal should take into account. In response, the applicant asked whether the Tribunal could speak to his lawyer. The Tribunal notes that the signed Response to hearing invitation provided by the applicant on 29 July 2020 indicated that the applicant’s representative would be appearing at the hearing, however at the commencement of the hearing the applicant confirmed that his representative would not be participating in the hearing. The applicant confirmed that there were no other participants in the hearing.

22. In response to the applicant’s question, the Tribunal informed the applicant that the hearing was an opportunity for his representative to provide oral submissions and he did not appear before the Tribunal. The Tribunal noted that an applicant is entitled, while appearing before the Tribunal, to have another person present to assist him or her, however there is no entitlement to be represented while appearing before the Tribunal. The Tribunal questioned the applicant as to whether there was a reason why his representative did not appear at the hearing, as specified in the Response to hearing invitation. The applicant responded that his representative had a court hearing to attend. The Tribunal notes that it did not receive a request for postponement of the hearing to allow the applicant’s representative to participate.

23. The Tribunal questioned the applicant as to the reason why he requested that the Tribunal speak to his lawyer. The applicant indicated it was so his lawyer could make additional submissions. The Tribunal accordingly granted the applicant an extension of 14 days, until 26 August 2020, to provide additional written submissions.

24. The Tribunal notes that on 11 August 2020 the applicant’s representative by email requested a copy of the audio file for the hearing, in which he confirmed his understanding that he had two weeks to provide a further written submission to the Tribunal.

25. The applicant was asked whether there were any other relevant matters which it should take into account in making its decision, other than any further written submissions to be provided. The applicant confirmed that there were not.

26. No further submissions (other than the email request for the audio file for the hearing) have been received by the Tribunal as at the date of this decision. No request for an extension of time to provide such further submissions has been received. The Tribunal notes that a written submission/’written arguments’ was provided by the applicant’s representative prior to the hearing, and the Tribunal has considered these submissions in its reasons above, and does not need to consider them again. Accordingly, the Tribunal finds that there are no other relevant matters which give weight against or in favour of cancelling the visa.

    Considering matters as a whole

27. In considering the circumstances as a whole, the Tribunal gives great weight to the extent of compliance with the visa conditions and the circumstances in which the ground for cancellation arse, and finds that these factors outweigh those considerations which give some weight against cancelling the visa.

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

    DECISION

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

    Frank Russo
    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.