Bhandari (Migration)

[2019] AATA 6631

Bhandari (Migration) [2019] AATA 6631 (6 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rohit Bhandari

CASE NUMBER:  1713781

HOME AFFAIRS REFERENCE(S):          BCC2017/1568730

MEMBER:Lynda Young

DATE:6 December 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 06 December 2019 at 9:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – serious breach – genuine student – opportunity to complete intended studies – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 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’s visa, granted on 13 June 2015, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations), requiring the applicant to be enrolled in a registered course of study.

3.    On 19 June 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act, on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study since 16 September 2016.  The applicant responded to the NOICC on 23 June 2017, providing an explanation letter and supporting documents including evidence of re-enrolment on 13 June 2017.

4. On 27 June 2017, the delegate cancelled the visa under s.116(1)(b) of the Act on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study since from 16 September 2016 to 13 June 2017, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5.    The applicant applied to the Tribunal for review of the decision on 28 June 2017, and attached to his application, a copy of the Notice of Cancellation and the Decision Record and his passport bio page (application). The issues in the present case are whether the ground for cancellation in s.116(1)(b) of the Act is made out, and if so, whether the visa should be cancelled.

6.    The applicant appeared before the Tribunal on 6 September 2019 to give evidence and present arguments. 

7.    For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

CONSIDERATION OF CLAIMS AND EVIDENCE

ISSUES

8. Under s.116 of the Act, the Minister may cancel a visa if he or he is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b).

9. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8 to the Regulations.

10.          In this case, condition 8202 was imposed on the applicant’s student visa.

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

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

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

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

12. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa, having regard to matters specified in the Act or regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

13. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, including:

a.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;

b.the extent of compliance with visa conditions;

c.degree of hardship that may be caused (financial, psychological, emotional or other hardship);

d.circumstances in which ground of cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

e.past and present behaviour of the visa holder towards the department;

f.whether there would be consequential cancellations under s.140;

g.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;

h.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;

i.if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

j.any other relevant matters.

14.          The issues for the Tribunal’s determination in this case are:

a.does the ground for cancellation in s.116(1)(b) of the Act exist?

b.if the ground for cancellation in s.116(1)(b) of the Act exists, should the discretion to cancel the visa be exercised?

EVIDENCE ON THE APPLICATION

15.          The evidence before the Tribunal on this application comprises:

a.documents on the Department’s cancellation file, relevantly, the NOICC and the applicant’s response to the NOICC provided to the Department on 23 June 2017, comprising:

i.the applicant’s “explanation letter” dated 15 June 2017;

ii.Confirmation of Enrolment (CoE) 70D81358 dated 25 March 2015 for enrolment at Curtin College in Diploma of Commerce, course start date 8 July 2015, completing 24 June 2016;

iii.CoE 70D80C13 dated 25 March 2015 for enrolment at Curtin University in Bachelor of Commerce, course start date 11 July 2016, completing 22 June 2018;

iv.Statement of Academic Record- Curtin College dated 8 December 2016;

v.CoE 1BEA0891 for enrolment at Hibernia Inst. Sydney in Diploma of Business, course start date 1 February 2016, completing 19 June 2016;

vi.Diploma Certificate and Transcript;

vii.Email to UBBS for admission;

viii.Email from college for assignment;

ix.CoE 8E3AA265 dated 13 June 2017 for enrolment at Polytechnic Institute’s Australia in Bachelor of Business, course start date 26 February 2017, completing 19 January 2020;

x.Letter from Hospital;

b.the application, including the attached Notice of Cancellation and the Decision Record;

c.documents provided by the applicant, including:

i.Hibernia Institute Sydney, letter dated 12 September 2016, verifying the applicant had been enrolled in Diploma of Business, enrolment started 1 February 2016 and was to end on 16 September 2016;

ii.Hibernia Institute Sydney, Record of Achievement (Transcript), Diploma of Business, study period 1 February 2016 to 16 September 2016 showing the units of competency in completion of the Diploma of Business;

iii.Hibernia Institute Sydney, Diploma of Business conferred on the applicant on 16 September 2016;

iv.social media post dated 18 January 2017, he has submitted is assignment more than three times but it has been marked as copied, are asking for Diploma transcript, ready to start in the new session;

v.written submission dated 22 July 2019;

vi.Taren Point Hotel letter dated 3 July 2017 to confirm employment as paid Commis Chef from 7 July 2015 to 11 October 2015 on part time basis;

vii.Certificate of Nepali Citizenship, Krishna Bahadur Bhandari;

viii.Panauti Municipality, letter of July 2 2017 to certify the family relationship;

ix.email 25 January 2017 GCA Admissions Centre to visa agent regarding assignment and enrolment in next intake;

x.letter Sumeru City Hospital dated 21 June 2017, to certify that Mr Krishna Hahadur Bhandari was admitted due to serious heart attach 4 September 2016 to 23 October 2016;

xi.Curriculum Vitae of applicant;

xii.CoE AC7EF156 Australian College of Professions for Certificate IV in Commercial Cookery, course start dated 12 August 2019, course end date 7 February 2021;

xiii.Panauti Municipality, letter of 23 November 2014, property valuation Mr Krishna Bahadur Bhandari;

xiv.Government of Nepal, Ministry of ;Land Reform and Management, Land Ownership Registration Certificate, Owner: Ram Kaji Bhandari;

xv.Land ownership registration certificate, the applicant's Grandfather;

xvi.Panauti Municipality Office, Property Valuation, Property of Mr Krishnan Bahadur Bhandari;

xvii.Panuti Municipality Office, Certificate of Annual Income, Mr Krishna Bahadur Bhandari and others;

xviii.Work Reference Letter, The Gymea Grill, dated 22 July 2019, to confirm the applicant was been employed since 10 October 2016 as a cook and giving his employment history with the company;

xix.Nabil Bank, Statement of Account, Mr Ram Kaji Bhandari, July 2019;

xx.Nabil Bank, letter to the Australian High Commission Sydney, dated 24 July 2019, certifying account balance of Mr Ram Kaji Bhandari;

d.Movement Details Record for the applicant dated 23 July 2019, confirmed by the applicant at hearing;

e.PRISMS summary for the applicant dated 23 July 2019, confirmed by the applicant at hearing;

f.the applicant’s evidence at hearing.

The NOICC

16.          The Department’s NOICC issued 19 June 2017, notified the applicant it intended considering cancellation of his visa as, based on PRISMS evidence, it appeared he had not been enrolled in a registered course of study since 16 September 2016, possibly breaching visa condition 8202(2)(a).  The applicant was invited to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, being those matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, and any other matter he considered relevant.

The applicant’s “letter of explanation” dated 15 June 2017

17.          In his letter of explanation dated 15 June 2017 responding to the NOICC, the applicant stated:

“Sub: Explanation for Notice of lntention to consider Cancellation

…I came to Australia on a student visa on 29 June 2015 to study Diploma of Commerce at Curtin College from 8 July 2015 until 24 June 2016, leading to Bachelor of Commerce at Curtin University of Technology Sydney from 11 July 2016 until 22 June 2018.

I enrolled in 3 subjects in Diploma of Commerce course on 8 July 2015 at Curtin College and out of 3, I passed in 2 subjects. (Please find the Statement of Academic Record attached)

Later, I came to know that Curtin Sydney campus was closing its operation in Sydney. Then I got in dilemma, what should I do and what should not I do. College staffs advised us to change the provider as they were stopping the operation in Sydney. So, after consulting with my parents and education agent I changed my provider and l issued a COE from Hibernia Institute Sydney to study Diploma of Business Course starting from February 2016. (Please find the coe attached).”

I  enrolled at Hibernia Institute on 1 Feb 2016 to resume my study. I was back on the track and studied at Hibernia. In the month of September my study was a bit affected as my grandfather was sick and he was admitted to the hospital. He had a minor attack because of which I could not focus on my studies for few weeks and. thus I fell behind my studies. I could not complete my assignments on time and thus could not complete my course on time too. Later, I submitted my assignments, but I failed in the assignments. ·(Please find the email from the college)

I got a bit frustrated as I failed few times. Meanwhile, I tried to get admission to other education provider to study Bachelor course but I was advised to provide my previous transcript and study record. (Please find email from college attached). If I could not provide my academic records · I had to study the Diploma course again and I do not want to repeat the course as I was close to finish my course. Thus, I spent more time to study and completed my assignment and submitted to the college. Finally, the result was out and I passed all the .units and was issued with the Diploma of Business certificate and transcript on 06 June 2017. I did some research and spoke to my friends and choose to study Bachelors Programme at Poiytechnic Institute of Australia from 26 June 2017 .

I was surprised after reading the Notice of Intention to consider Cancellation letter that said I was not enrolled in a registered course since 09 February 2016. But in fact, I was enrolled at Hibernia Institute Sydney since February 2016 and I recently graduated with Diploma of Business. (Please find the certificate and transcript attached)

I spoke to my parents that I have received Notice of intention to cancel my student visa and they are shocked, as they have already spend so much money for my studies, they want me to finish my study in Australia and build a career. They love me very much and they are worried about my future, they have a big expectation from me and they are happy to support me towards my study. I have promised them that I won't let them down. I had always been a good student in my life. I wish that you show some generosity and allow me study and build my future career. Currently, I have issued a coe for Bachelor of Business programme commencing from 26 June 2017 at Polytechnic Institute of Australia.

Here, I request, please understand my situation and allow me to study.

Looking forward for a favourable action at your end.”

The decision

18.          The Decision Record sets out, relevantly, in summary:

a.the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 13 June 2015, with a stay period to 22 August 2018;

b.the Department’s NOICC issued on 19 June 2017 on the basis of PRISMS evidence that the applicant was not enrolled in a registered course of study since 16 September 2016;

c.the applicant, in his response to the NOICC, did not address matters of non-compliance or with regards to grounds for cancellation, and stated a serious illness in the family had led to the him not being able to focus on his studies and failing his assignments which eventually led to the cancellation of his Bachelor studies;

d.on 27 November 2015, the applicant’s Education Provider, Curtin University of Technology, notified the Department of Immigration and Border Protection the applicant had ceased studies and was no longer enrolled;

e.according to PRISMS, the applicant was not enrolled in a registered course of study from 16 September 2016 to 13 June 2017 - a period of 8 months and 28 days. Accordingly, the delegate was satisfied there was ground for cancellation;

f.the applicant, in his response to the NOICC, stated the reason why the visa should not be cancelled was because he wished to continue his studies to build his future career;

g.the applicant travelled to Australia to undertake a course of study to further his education and receive a qualification. There was no evidence before the delegate suggesting the applicant’s original intention for his travel to and stay in Australia was not for the purpose of study.

h.at the time the Notice of Intention to Consider Cancellation was sent 26 June 2017, the applicant had not held a relevant or current COE from 16 September 2016 to 13 June 2017, and the delegate considered this was a reasonable period to either take action to remedy the situation or make alternative plans to depart;

i.there was no evidence the applicant had been non-compliant with visa conditions other than with visa condition 8202;

j.the applicant did not address matters of hardship in his response to the NOICC;

k.the delegate accepted the applicant, if his visa were cancelled:

i.may be caused some financial difficulty as he would have no work rights and therefore no legal ability to work in Australia and gain an income;

ii.may be caused some inconvenience and hardship, he was granted a temporary visa for the purpose of studying towards and achieving an educational qualification in Australia. That purpose ended on 16 September 2016 when he completed his Diploma of Business and thereafter did not re-enrol;

iii.if he did not voluntarily depart Australia, would become an unlawful non-citizen and be liable for detention under s189 and removal under s198 of the Act;

iv.would be subject to s.48 of the Act, significantly limiting the classes of visa for which he may apply onshore, so would need to depart Australia and apply from overseas for most types of further visa applications;

v.would be subject to Public Interest Criterion 4013, and may not be granted a temporary visa for three years;

l.the circumstances in which the ground for cancellation arose occurred when the applicant failed to maintain his enrolment in a registered course of study in breach of visa condition 8202(2)(a);

m.in his response to the NOICC, the applicant explained his grandfather had taken seriously ill and was admitted to hospital that led to him not being able to complete his assignments and failing his assignments due to stress.  However, the delegate noted there was no evidence of a release form or letter from the applicant’s education provider indicating the applicant had availed himself of the options for deferring his studies. The onus rests solely on the student to contact the department before they take any action to significantly change their circumstances (such as ceasing studies without obtaining alternative enrolment or not commencing further studies) and to clarify any consequences that may result from such a change;

n.there was no evidence the applicant had been uncooperative with the Department;

o.according to Departmental records, there were no persons in Australia whose visas would, or may, be cancelled under s140 of the Act;

p.the circumstances of the applicant’s case were not such that would engage Australia's international obligations and cancellation of the visa would not lead to a breach of Australia's international obligations;

q.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

Applicant’s “written submission” dated 22 July 2019

19.          The applicant, in his “written submission” dated 22 July 2019, stated:

I am writing this submission in support of my review application in respect of a decision to cancel a Subclass 573 Higher Education Sector visa, on 28 June 20 1 7.

The relevant fact was I was not enrolled in a registered course of study from 16 September 2016 to 13 June 2017 a period of 8 months and 28 days. Therefore, the issue was as a student visa holder I did not meet the requirements of condition 8202(2)(a).

My grandfather was admitted to hospital in Nepal due to serious heart attack, from 04 September 20 1 6 to 23 October 20 1 6. I am very close to my grandfather. My grandfather has two sons. My father is the oldest and my uncle lives with his family. My grandparents live with my parents. Thus, I was born and brought up in the house where my parents and grandparents both lived. My father was employed with Nepal Army so he kept travelling due to his postings at various towns and villages. Therefore, my grandfather played a role as my father most of the time.

I wanted to return to my home country to see my grandfather. However, my parents insisted me to complete the course because I was close to completing my Diploma course in Australia. They had invested their hard earned money and as their oldest child they wanted me to return only after completing my Bachelor course. In other words, they wanted to see me successful so that my siblings could also follow my pathway.

I was psychologically distressed and shocked. I was going through anxiety and stress.

Technically I was supposed to complete my Diploma of Business at Hibernia Institute Sydney on 16 September 2016. However, due to my assignment issues my teacher failed me unfairly. I was unfairly forced' to submit my assignment four times. ' The' third time I submitted my assignment was in January 2017. Please refer to the attached copy of my email that I had sent to my college principal on 18 January 2017 .

However, during that time my college director of studies Mr. Anand Karuppiah went on holiday without notice. He returned in March 2017 . I met him. He made me to do my assignment for the fourth time. I submitted in April 2017.

The college then took almost three months to review and confirm that I had officially completed the course. I was issued with the certificate of Diploma of Business on 06 June 2017. Even though the letter says I had completed my course on 16 September 2016, the actual date the certificate was issued to me was on 06 June 2017. They had to mention the date of completion as per my CoE (confirmation of enrolment) due to which the date remained the same.

I had to wait to get my transcripts and certificate of completion for my Diploma before I could enrol in any Bachelor course.

During the time I was waiting for the confirmation of my completion of my Diploma of Business from Hibernia Institute, I was actively applying for bachelor courses with other education providers in Sydney. The Hibernia Institute did not offer any bachelor program at the time. Even though I had not received my official transcripts for my Diploma, I was hoping to get a conditional Letter of Offer for a bachelor course with other providers.

Please refer to the email ( dated 25 January 2017) attached which was sent by the following college in response to my application for a Bachelor course. The email is a confirmation that without the evidence of my Diploma course they would not accept me.

UBSS, GCA Admissions Centre, Suite 1305 I Level 13, 99 Bathurst Street, SYDNEY NSW 2000 (UBSS is owned by GCA) I received evidence of the completion of my Diploma course on 06 June 2017 and on 19 June 2017. The department sent me two NOICC letters due to their error on the first letter. The error was that the date since when I did not enrol in a registered course of study was incorrect.

The reasons why I was not enrolled from 16 September 2016 to 13 June 2017 was compelling. Not all students in a similar situation like myself would have same reasons like myself for not enrolling. Therefore, the circumstances that led me to be without enrolment was exceptional.

My current circumstance:

I am currently enrolled in Certificate IV in Commercial Cookery at Australian College of the Professions which is due to begin in 12 August 2019 and finish on 07 February 2021.

I have been working as a paid Cook in Australia since 07 July 2015

…

The course that I intend to do now is highly relevant to my past and current employment history in Australia. Upon completion of this course, I would advance my career in the field of hospitality.

The qualification will be globally recognised. The qualification will finalise my work experience and fill gaps in my knowledge. Upon completion and returning to my home country I could find a job as a Cook in a very successful hospitality business and advance my career. I could also start my own Cookery training institute and pass on my skills to my fellow citizens and make a living out of it. My parents are also keen in investing money for me to start our own family restaurant business in Kathmandu, Nepal.

There are many highly successful and profitable restaurants and hospitality business in Kathmandu especially who have highly trained and qualified Cooks and Chefs like myself.

Conclusion:

The circumstance that led me to have gap in my study and breach my visa condition was exceptional as it is not common for all international students like myself in a similar situation to have a similar circumstances. Also, the reason why I could not enrol for that period was beyond my control.

Therefore, I request the respected tribunal to remit the matter for reconsideration.”

DOES THE GROUND FOR CANCELLATION IN S.116(1)(B) OF THE ACT EXIST?

Did the applicant comply with Condition 8202?

20.          To his credit, the applicant frankly admitted in his written submission to the Tribunal, he was not “enrolled in a registered course of study from 16 September 2016 to 13 June 2017 a period of 8 months and 28 days”..

21.          On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study from 16 September 2016 to 13 June 2017 As a result, for the period from 16 September 2016 to 13 June 2017, the applicant failed to comply with visa condition 8202(2)(a).

22. Accordingly, the Tribunal is satisfied the ground for cancellation in s.116(1)(b) exists.

23. As the ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

Consideration of the discretion to cancel the visa

24. 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.

25.          The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘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

26.          The Tribunal is satisfied the applicant’s intended purpose for his travel to and stay in Australia was study.  The applicant’s evidence consistently maintains this was his intention and there is no evidence to the contrary before the Tribunal.

27.          On the evidence before the Tribunal, the applicant was not enrolled in any course of study for eight months and 28 days from 16 September 2016 to 13 June 2017.

28.          Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia.  That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study.  Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for more than eight months is significant and weighs in favour of cancellation. 

29.          The Tribunal is not satisfied the applicant’s originally intended purpose for travel to and stay in Australia provides a compelling need to travel to and remain in Australia.  Failing to be enrolled for more than eight months and 28 days is inconsistent with such need and the applicant has given no evidence suggesting he has any such need.  The Tribunal gives this consideration weight in favour of cancelling the visa.

30.          The Tribunal accepts the applicant’s evidence he has been working in Australia since July 2015 as a Cook and is currently enrolled in a certificate IV in commercial cookery The Tribunal is satisfied completing studies in his currently enrolled course provides a need for the applicant to remain in Australia.  The Tribunal gives his consideration weight in favour of not cancelling the visa.

The extent of compliance with visa conditions

31.          Other than his non-compliance with condition 8202(2)(a), there is no evidence before the Tribunal disclosing any instance of the applicant failing to comply with any conditions imposed on his visa.  Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled in breach of visa condition 8202(2)(a) for more than eight months.  The Tribunal considers that noncompliance is significant and weighs in favour of cancelling the visa.

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

32.          The delegate accepted cancellation of the applicant’s visa would likely result in some financial hardship to the applicant.

33.          The applicant’s evidence at hearing, which the Tribunal accepts, is that he intends to complete his studies in Australia in return home to work in the industry. Accordingly, the Tribunal finds the applicant would, upon cancellation of his visa, suffer hardship resulting from being unable to complete the courses in which he had enrolled.  This hardship includes forfeiting part or all of his prepaid course fees, reducing his employability in future, causing diminution in his income potential and restricting his ability to provide financially for his parents after they cease working.

34.          According to the applicant, his parents have spent a great deal on his studies to date and wished him to finish his studies in Australia so he can return home to build his career. Although the applicant’s parents have continued to fund the applicant’s studies in Australia after his student visa had been cancelled and accordingly must be taken to have accepted some risk in that respect, the Tribunal accepts the applicant is subject to both a cultural and parental expectations to financially support of his parents in their retirement years and, in effect, the financial support from his parents is a form of investment the success of which is dependent upon the applicant’s earning potential. In other words, unless the applicant completes his qualifications, the applicant’s parents' return on investment will be diminished.

35.          The Tribunal considers these specific hardships weigh against cancellation.

36. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

37. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

38.          The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

Circumstances in which ground for cancellation arose.  If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.  The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

39.          The decision record states the applicant had failed to demonstrate he had availed himself the internal University process to defer his studies when his grandfather was ill. The Tribunal accepts this was the case.

40.          However, the Tribunal also has before it the applicant’s evidence as set out at paragraphs 17 and 19, above.  In the absence of any contradictory evidence,  the Tribunal accepts the applicant’s explanations as to how he came to fail to enrol. The Tribunal is satisfied from this evidence the applicant genuinely intended to maintain enrolment but suffered a series of difficulties and unfortunate circumstances that culminated in him failing to be enrolled. However, the Tribunal is not satisfied the ground for cancellation arose in circumstances beyond the applicant’s control.

41.          The Tribunal weighs this factor in favour of cancellation.

Past and present behaviour of the visa holder towards the Department

42.          There is nothing in the evidence before the Tribunal to suggest the applicant’s past or present behaviour towards the Department was adverse.  The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there would be consequential cancellations under s.140

43. On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s140. The Tribunal weighs this factor neither in favour of 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

44. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing his re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in-force, result in his immediately becoming unlawful and liable to detention under s.189 of the Migration Act or removal under s.198 of the Migration Act.

45. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

46.          The Tribunal gives this consideration weight in favour of not 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

47.          Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm.  Australia is a signatory to a number of international instruments, which give rise to non-refoulement obligations.  Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

48. Non-refoulement obligations' is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

49.          On the applicant’s evidence at hearing, his only reason to remain in Australia is to complete his studies.  He will return to his home country after completing his course.  The applicant’s evidence as to problems he would be caused if he returned before completing his course did not extend beyond those difficulties as would ordinarily and reasonably be foreseen as likely to afflict any unqualified person competing in a candidate pool of mostly qualified persons on an open labour market.  Those matters would not attract non-refoulement obligations.

50.          The Tribunal finds, in the circumstances of this case, cancellation would not lead to removal in breach of non-refoulement obligations.  As the Full Federal Court stated in COT15 v MIBP (No 1) (2015) 236 FCR 148, cancellation of a visa is legally distinct from removal.

51.          There is no evidence before the Tribunal that cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

52.          The Tribunal considers these factors weigh neither in favour of nor against cancellation.

If the applicant’s visa is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia;

53.          The applicant’s visa is a not a permanent visa.

Any other relevant matters.

54.          The evidence before the Tribunal does not disclose any other relevant matters.

Conclusion

55.          The applicant has demonstrated he is a genuine student who should have his visa reinstated, and be given the opportunity to pursue his intended study in Commercial Cookery, due for completion in February 2021.

56.          Taken together and considered as a whole, the Tribunal is satisfied the matters weighing against cancellation of the visa significantly outweigh the matters weighing against cancellation of the visa.

57.          Considering the circumstances as a whole, the Tribunal concludes the visa should not be cancelled.

DECISION

58.          The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Lynda Young
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.