Brahma (Migration)

[2020] AATA 726

Brahma (Migration) [2020] AATA 726 (17 March 2020)

DECISION RECORD

DIVISION:		Migration & Refugee Division
APPLICANT:		Mr Shilpee Brahma
CASE NUMBER:		1921619
HOME AFFAIRS REFERENCE:		BCC2019/1830137
MEMBER:		Dr Jason Harkess
DATE:		17 March 2020
PLACE OF DECISION:		Melbourne
DECISION:		The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa

Statement made on 17 March 2020 at 3:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) –not enrolled in registered course – poor academic performance and change of course – father’s ill health and medical treatment – arranged marriage and breakdown of relationship – mental health – one psychological consultation – visa would have expired in any case – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 119

Migration Regulations 1994 (Cth), Schedule 2, cl 500.611(1)(a), Schedule 8, condition 8202(2)(a)

CASES

Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421

Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248

Shoukat v Minister for Home Affairs [2020] FCA 194

STATEMENT OF DECISION AND REASONS

INTRODUCTION AND OVERVIEW

Student Visa Cancellation – Application for Review

1. The Applicant is a citizen of India and is 31 years old. He seeks review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) on 30 July 2019 cancelling his Student (Temporary) (Class TU) Subclass 500 visa pursuant to s 116(1)(b) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant lodged his review application with the Tribunal on 5 August 2019.

Original Visa Grant

1. The Applicant’s visa was granted on 28 November 2017. It was granted because a delegate of the Minister had determined that he met the primary criteria for the grant of a student visa.[1]

   [1] The primary criteria for the grant of a student visa are set out in the Migration Regulations 1994 (Cth), Sch 2, cls 500.211 to 500.218.

2. The visa had an original expiry date of 30 September 2019 before it was cancelled. It provided for more than 22 months during which the Applicant would be permitted to reside in Australia for the purpose of full-time study. Specifically, the visa had been granted so that the Applicant could complete a Master of Professional Accounting at Holmes Institute (‘Holmes’). It was the Applicant’s second student visa, the first having been granted in June 2015 which provided for an initial stay period of just over two years.

Reasons for Cancellation

1. The Applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s 116(1)(b) of the Act. The delegate found that the Applicant had not complied with that condition of his visa which required him to continue to be enrolled in a full-time registered course of study.

2. Upon making that finding, the delegate proceeded to consider all other relevant circumstances before concluding that the Applicant’s visa ought to be cancelled.

3. The delegate’s reasons are set out in a decision record. That decision record was provided to the Applicant when he was notified that his visa had been cancelled on 30 July 2019.[2] By lodging his review application, the Applicant contends that the delegate’s decision to cancel his visa is neither the correct nor preferable outcome in this case.

   [2] Notification was given in accordance with s 127 of the Migration Act 1958 (Cth) and reg 2.55(3)(d)(ii) of the Migration Regulations 1994 (Cth) by emailing the notification of cancellation and decision record to the Applicant’s last email address known to the Minister on the date of the decision. By the operation of reg 2.55(8) of the Migration Regulations 1994 (Cth), the Applicant is taken to have received notification on that date.

Issues for Determination by Tribunal

1. The first issue requiring consideration by the Tribunal is whether the grounds for cancellation under s 116(1)(b) of the Act are made out, namely whether the Applicant did not comply with a condition of his visa. If the Tribunal determines those grounds are made out, the second issue requiring consideration is whether the preferable outcome is that the Applicant’s visa be cancelled.

Hearing of Application

1. The Tribunal convened a hearing to consider the merits of the application on 7 October 2019. The Applicant appeared before the Tribunal by video link to give evidence and present arguments.

2. The Applicant was assisted by his registered migration agent, Mr Ketan Juvekar, who also attended the hearing by video link and made submissions on the Applicant’s behalf.

Documentary Materials

1. Prior to the hearing, the Applicant filed the following documents with the Tribunal:

   (a)the delegate’s decision record (e-lodged 6 August 2019);

   (b)ANZ bank account statement of the Applicant dated 2 September 2019 (e-lodged 9 September 2019, relating to the Applicant’s request for his review application fee to be waived); and

   (c)letter dated 29 August 2019 from Lion Finance Pty Ltd confirming credit card debt of $5,772.05 owed by the Applicant as at that date (e-lodged 9 September 2019, relating to the Applicant’s request for his review application fee to be waived).

2. The Applicant did not file any additional documents during the hearing.

3. At the conclusion of the hearing, the Tribunal permitted the Applicant time to file further documentary materials in support of his case. The Tribunal received the following additional documentary materials:

   (a)‘Patient Health Summary’ prepared by the Applicant’s healthcare provider, TLC Primary Care Pty Ltd, dated 8 October 2019 (e-lodged 8 October 2019); and

   (b)letter from V K Diwan & Sakshi Doda Advocates dated 2 October 2019 addressed to the Applicant and others (e-lodged 8 October 2019).

Tribunal’s Determination

1. The Tribunal has concluded that the decision to cancel the Applicant’s visa ought to be affirmed. In reaching its decision, the Tribunal has had regard to:

   (a)the delegate’s decision record;

   (b)the oral evidence and arguments of the Applicant presented at the hearing;

   (c)the oral submissions of Mr Juvekar made at the hearing;

   (d)all written material filed by or on behalf of the Applicant before, during and after the hearing; and

   (e)other relevant documents on the Tribunal and Department files.

2. The Tribunal notes that not all the evidence and material that has been placed before the Tribunal has been specifically referred to in the Tribunal’s reasons as set out below. The reasons incorporate reference to information that the Tribunal has been found to be fundamental or materially significant to the determination of the issues in the case.[3]

GROUNDS FOR CANCELLATION

[3] The Tribunal notes that it is not required to make explicit reference to every piece of relevant information before it because not all relevant considerations will be material or fundamental in any given case. See Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123, [30]-[31] (Kiefel CJ, Gageler and Keane JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421, [49] (Bell, Gageler and Keane JJ); Shoukat v Minister for Home Affairs [2020] FCA 194; Minister for Immigration and Citizenship v Khadgi (2010) 190 FCR 248, 271

Applicable Law

1. Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The Applicant’s visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) (‘the Regulations’), when the visa was granted.

2. Condition 8202(2)(a) attaches to all student visas and creates a continuing obligation for the duration of the visa.[4] It requires the visa holder to maintain enrolment in a full-time registered course of study.

   [4] Migration Regulations 1994 (Cth), Sch 2, cl 500.611(1)(a). All standard conditions of visas issued to non-citizens, including Condition 8202, are set out in full in the Migration Regulations 1994 (Cth), Sch 8.

3. The imposition of Condition 8202(2)(a) draws attention to the fact that all student visas are issued for the specific purpose of studying on a full-time basis. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason for changing their course of study, they are specifically prohibited from ceasing to be enrolled altogether. In that regard, Condition 8202(2)(a) is one of many student visa conditions designed to ensure that Australia’s student visa program is not abused

Has the Applicant Failed to Comply with Condition 8202(2)(a)?

Delegate’s Allegations

1. In the delegate’s decision record, the delegate identified the period from 13 April 2018 to 30 July 2019 as the relevant period during which the Applicant was said not to be enrolled in a full-time registered course of study. This amounted to more than 15 months during which the Applicant was alleged to be in continuous breach of his visa.

2. The delegate’s findings were based on a report which the delegate had obtained from the Department of Education and Training’s Provider Registration and International Student Management System (‘PRISMS’). The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’).[5] It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student’s enrolment status and notify the Department of Education and Training of any issues arising from a student’s general compliance with visa conditions once a visa has been issued. At the time the delegate cancelled the Applicant’s visa, the PRISMS database indicated that the Applicant had not been enrolled in a registered course of study since 13 April 2018.

   [5] See Department of Education and Training, Provider Registration and International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018) [1.1].

3. On 7 June 2019 the Department of Home Affairs (‘the Department’) notified the Applicant of its intention to consider cancelling his visa (‘the NOICC’). In accordance with s 119 of the Act, the NOICC:

   (a)gave particulars of the allegation that the Applicant had not complied with Condition 8202(2)(a) of his visa;

   (b)gave particulars of the information obtained from the PRISMS database that founded the allegation;

   (c)informed the Applicant that not complying with Condition 8202(2)(a) constituted grounds for cancelling his visa; and

   (d)invited the Applicant to show the Department that those grounds did not exist or that there was a reason why his visa should not be cancelled.

Applicant’s Initial Response

1. The Applicant through his representative, Mr Juvekar, responded to the NOICC on 14 June 2019 and 25 June 2019 (collectively, ‘the Applicant’s NOICC response’). In that response, the Applicant did not dispute that he was in breach of Condition 8202(2)(a) of his visa as alleged, although he sought to argue that his visa should nevertheless not be cancelled.

Evidence Given by Applicant at Hearing

1. At the hearing before the Tribunal on 7 October 2019, the Applicant admitted that he was not enrolled in a registered course of study for the period 13 April 2018 to 30 July 2019. This effectively amounted to an admission that he had not complied with Condition 8202(2)(a) of his visa.

Conclusion

1. Based on the material before the Tribunal, it is reasonably clear that the Applicant did not comply with a condition of his visa. The Tribunal finds that the Applicant did not comply with Condition 8202(2)(a) of his visa for the period 13 April 2018 to 30 July 2019. Accordingly, there are grounds for cancelling his visa under s 116(1)(b) of the Act.

CONSIDERATION OF DISCRETION TO CANCEL VISA

1. Having found that there are grounds for cancelling his visa, the Tribunal must proceed to consider whether the preferable outcome in this case is that Applicant’s visa should be cancelled.

Relevant Factors

1. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including any matters raised by the Applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

2. The matters that ought to be considered specifically are listed in PAM3 as follows:

   (a)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant’s control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);

   (b)the purpose of the Applicant’s travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;

   (c)the extent of the Applicant’s compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;

   (d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;

   (e)the Applicant’s past and present behaviour towards the Department (eg, whether they have been truthful and co-operative in their dealings with the Department);

   (f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;

   (g)whether there are mandatory legal consequences arising from a decision to cancel the visa;

   (h)whether Australia has obligations under any relevant international agreements that would be breached as a result;

   (i)any other relevant matter.

Circumstances Giving Rise to Non-Compliance with Visa Condition

1. The circumstances giving rise to the Applicant’s non-compliance with the conditions of his latest student visa cannot be considered in isolation from his educational history since he first arrived in Australia. As the delegate’s decision record notes, the Applicant arrived in Australia on 21 June 2015, having been granted a Subclass 573 (Higher Education Sector) visa. At the hearing before the Tribunal, the Applicant stated that this visa had been granted so that he could complete a Master of Professional Accounting course at Charles Sturt University (‘Charles Sturt’). He was eligible for entry into the Master’s program at Charles Sturt because he had completed a Bachelor of Commerce in India in 2009.

2. The Applicant further explained to the Tribunal that he had significant difficulty in progressing with his course at Charles Sturt. He stated that in his first semester of studies, which commenced in July 2015, he failed to pass any of the units in which he was enrolled because of difficulties he had in grasping the teaching methods. Following that poor performance, he terminated his enrolment at Charles Sturt and commenced studying for a Master of Professional Accounting at Holmes.

3. The first semester of studies at Holmes commenced in early 2016. The Applicant stated that, while he was at Holmes, he managed to pass a total of four units in the 18 months that he was there. The Applicant was unable to produce to the Tribunal any academic records from Holmes which corroborated his claims in this respect. However, with some reservation, the Tribunal accepts the Applicant’s assertion that he passed these four units.

4. The problem for the Applicant is that, by his own admission, these four units are the only units that he has managed to pass in the entire time that he has spent in Australia since 2015. He has now been in Australia for almost five years purportedly as a full-time international student. In that time he has only managed to pass a handful of Master’s units that would ordinarily take a full-time student no more than eight months to complete.

5. The Applicant’s second student visa, the cancellation of which is now the subject of the present review application, was evidently granted to afford him a second opportunity to complete the Master’s course at Holmes. However, in the course of giving evidence before the Tribunal, the Applicant candidly admitted that he has failed to achieve anything more in terms of course progress. The Applicant’s enrolment at Holmes terminated on 13 April 2018, being only four and a half months after he was granted his second visa. He was not enrolled for some 15 months thereafter. In effect, the Applicant has failed to utilise any of the 22 months he was granted under this visa effectively for the purpose for which it was granted. In the Tribunal’s view, the situation with respect to this lack of progress requires a satisfactory explanation.

6. In the Applicant’s NOICC response, Mr Juvekar sought to explain the circumstances giving rise to the Applicant’s non-compliance with Condition 8202(2)(a). Mr Juvekar stated that the Applicant’s capacity to study had been seriously affected by the terminal cancer diagnosis of his father who remained in India. His father’s illness resulted in the Applicant frequently having to return to India to visit his family. The father’s ill-health was suggested to have taken an emotional, physical and financial toll on the Applicant. The Applicant was the ‘first son’, and therefore had responsibilities to care for his parents. He said that the Applicant remained in Australia to try and complete his studies but the combination of stressful events led to the Applicant being unable to do so. The essence of the Applicant’s claim is found in these words contained in the Applicant’s NOICC response, articulated by Mr Juvekar on his client’s behalf:

   [The Applicant] has been really stressed, preoccupied with many worries and stretched too thin but he knows where he wants to be and understands the impact his educational pursuit plays in achieving his future ambition. For these reasons, my client remained in Australia and struggled to adhere to his academics whilst facing so much emotionally…

   …

   Therefore, my client's breach of visa condition was due to circumstances beyond his control, hence the grounds for cancellation do not exist. I kindly urge you to reconsider my client's case on compassionate grounds and oblige.

7. Accompanying the Applicant’s NOICC response were several documents to corroborate his claims. A letter dated 12 July 2018 from Ms Ling Mu, a psychologist, stated that the Applicant had symptoms of Generalised Anxiety Disorder. There were also two documents from a healthcare provider based in India which related to the treatment of the Applicant’s father. A ‘discharge summary’ from Basavatarakam Indo-American Cancer Hospital dated 4 May 2018 indicated that the Applicant’s father had been diagnosed with cancer in August 2016 and outlined the treatment that he had been receiving. Another letter from the same hospital dated 12 June 2019 referred to the continuing deteriorating health of the Applicant’s father.

8. At the hearing before the Tribunal, the Applicant in oral evidence largely reiterated what Mr Juvekar had conveyed in the NOICC response. However, the Applicant raised the additional matters of his pending divorce from his wife, and also a breakdown in his relationship with his sister who is a permanent resident in Australia.

1. In relation to his wife, the Applicant referred to the fact that he had married in June 2018. In accordance with the customs of India, this marriage had been arranged between the families of the bride and groom. The Applicant returned to India in June 2018 for the express purpose of getting married before returning to Australia. However, his new wife did not return to Australia with him because she did not have an Australia visa. The Applicant stated that his wife applied for a student visa off-shore in her capacity as his spouse. However, the visa application was refused.

2. The Applicant stated that his wife’s visa refusal, among other things, resulted in the break-down of their marriage. The letter from letter from V K Diwan & Sakshi Doda Advocates (‘Diwan & Doda’) dated 2 October 2019, who appear to be acting on behalf of the Applicant’s wife, corroborates his claim that the marriage is in the process of dissolution. The Applicant described the relationship break-down as ‘turbulent’. The letter from Diwan & Doda contains allegations directed at the Applicant that suggest the relationship is now very acrimonious. It would seem that this has added to the Applicant’s stress levels and also the circumstances which he says would constitute compassionate reasons for not cancelling his visa.

3. Regrettably, sickness of family members, marriage and relationship problems, and financial worries are unkind life stressors that everyone must deal with at some point. Non-citizens on student visas in Australia are no exception. Many student visa holders are forced to contend with such difficulties during their stay in Australia. They are all burdened in a similar way in that they are having to deal with some degree of emotional turmoil while away from their families in their home country. At the same time, they are obviously burdened with having to maintain their studies in Australia in order to comply with the strict visa conditions attaching to student visas. Many such students are young adults, just like the Applicant.

4. In such circumstances, registered course providers and the Department have in place policies that permit the exercise of discretion for compassionate reasons that will allow a student visa holder some latitude in having to deal with a difficult personal situation.[6] The National Code of Practice for Providers of Education and Training to Overseas Students 2018 (‘the National Code’) permits course providers, upon application by a student visa holder, to defer or suspend a current enrolment if there are ‘compassionate or compelling circumstances’ for doing so.[7] The cancellation of an enrolment and the subsequent cancellation of a visa is a last resort.

   [6] See in particular

   [7] See National Code of Practice for Providers of Education and Training to Overseas Students 2018, Standard 9.1. The National Code was made by the Minister for Education and Training under s 33(1) of the Education Services for Overseas Students Act 2000 (Cth) on 4 September 2017.

5. As the delegate noted, in this case the PRISMS database indicated that the Applicant’s enrolment in the Master’s course was cancelled by the course provider due to the ‘non-commencement of studies’ and ‘deferment/suspension for compassionate or compelling circumstances’. It appears that the Applicant was granted temporary leave from his studies by his course provider for just over three months from 9 April 2018 to 15 July 2018 due to ‘compassionate or compelling circumstances’. Having regard to that fact, the period during which the Applicant was not complying with Condition 8202(2)(a) of his visa ought, in the Tribunal’s view, to be reduced from 15 months to 12 months.

6. However, as the delegate’s decision further notes, no further deferral of studies was granted by the Applicant’s course provider. The Applicant’s lack of enrolment from 16 July 2018 to 30 July 2019 remained without endorsement. The delegate made reference to the letter dated 12 July 2018 from Ms Mu which the Applicant appears to have attempted to use to apply for a further suspension of his studies. The Applicant stated as much in evidence. However, even with that letter, it appears he was unsuccessful in obtaining a further deferral. Having regard to the contents of Ms Mu’s letter, the Tribunal is not surprised at the outcome. The entirety of the psychologist’s letter is reproduced as follows:

   I’m writing to support Mr Brahma’s application for deferment of his studies for Semester 2, 2018.

   I have assessed him and he is experiencing significant anxiety symptoms which meet criteria for Generalised Anxiety Disorder.

   I recommend that he takes leave from his studies in Semester 2 to help him recover.

7. Ms Mu wrote nothing further. As the Applicant stated in oral evidence, he only saw Ms Mu once. He said that he did not see her on any further occasions.

8. It is difficult for the Tribunal to see how Ms Mu could so quickly conclude that the Applicant met the criteria for being diagnosed with Generalised Anxiety Disorder after just one consultation with him. In any event, the Tribunal is not satisfied that Ms Mu’s observation about the state of the Applicant’s mental health on 12 July 2020, expressed in only one sentence, constitutes sufficient evidence to demonstrate that the Applicant was suffering from Generalised Anxiety Disorder. Indeed, Ms Mu’s words do not even go so far as to formally diagnose the Applicant as having had Generalised Anxiety Disorder. They merely suggest that, in her view, the Applicant had expressed a narrative of events to her that indicated he had been experiencing symptoms that were consistent with such a diagnosis being made.

9. The Applicant did not rely on any other psychological evidence at the hearing before the Tribunal to advance the claim that he was suffering Generalised Anxiety Disorder, or any other kind of mental health condition, at the time he remained in continuous breach of his visa. There is no other independent expert evidence before the Tribunal that could sustain such a claim. The Applicant’s ‘Patient Health Summary’ dated 8 October 2019, which was filed after the Tribunal hearing, discloses that the Applicant is currently taking medication for gastrointestinal issues and nothing else.

10. In the end, the Tribunal has not been presented with any cogent evidence that substantiates the Applicant’s claim that he was psychologically incapable of studying for the 12-month period from 16 July 2018 to 30 July 2019. The Tribunal is not satisfied that the Applicant was suffering a clinically diagnosable mental health condition that puts his suffering into a category that goes beyond the ordinary mental difficulties that ordinary people generally suffer on a day to day basis in dealing with life’s stressors. On the Applicant’s own evidence given at the hearing, he was able to engage in paid employment throughout this time. The Applicant stated that he has continued to work pending the determination of his review application by the Tribunal. That being the case, it is the Tribunal’s view that the Applicant was also capable of continuing to study in Australia if he had chosen to prioritise his obligation to do so.

11. While the Tribunal accepts the Applicant’s account of his father’s ongoing illness, the break-down of his marriage, the break-down of his relationship with his sister, and other life events leading to him becoming stressed, the Tribunal does not accept the Applicant’s contention that these events caused him to cease his studies. The decision to terminate his enrolment, and stop studying, were voluntary decisions made by the Applicant. He did not wish to study and so he chose not to. The Tribunal finds that the circumstances giving rise to the Applicant’s non-compliance with Condition 8202(2)(a) were neither extenuating nor beyond the Applicant’s control. This finding weighs significantly in favour of cancelling his visa.

Purpose of Applicant’s Stay in Australia

1. The purpose of the Applicant’s stay in Australia, as reflected in the essential purpose of a student visa, was to study on a full-time basis. That purpose was effectively been defeated as a result of the Applicant’s decision to discontinue his studies in the Master of Professional Accounting course at Holmes.

2. The Tribunal has considered the possibility that the purpose of the Applicant’s visa could potentially be restored by the Applicant undertaking to enrol in and successfully completing a Master’s course. He indicated that he would do so at the hearing before the Tribunal. The difficulty with this proposition is that the Applicant has already been afforded two opportunities to complete a Master’s degree in Australia, having been granted two student visas to do so. Allowances have been made for the circumstances of the Applicant, such that more time was given to him to stay in Australia. Yet, despite that indulgence, after almost five years in Australia he has been unwilling or unable to complete that which he originally set out to do.

3. The Tribunal notes that student visas are, by their nature, inherently temporary. His second student visa which was cancelled would now have lapsed if it had not already been cancelled. The Tribunal does not see any utility in allowing him to stay in Australia as a student any longer. This weighs heavily in favour of cancelling his student visa.

Extent of Applicant’s Compliance with Visa Conditions

1. The Tribunal has given consideration to the Applicant’s compliance with other visa conditions. But for the non-compliance with Condition 8202(2)(a) that is now before the Tribunal, it appears that the Applicant has otherwise been compliant with the conditions of visas that have been issued to him. The Tribunal has given this some weight in his favour. However, given the significant period of time during which the Applicant was in continuous breach of his most recent visa, this factor does not weigh heavily in the Tribunal’s deliberations.

Hardship

1. The Tribunal has given consideration to the Applicant’s expressed desire to remain in Australia and complete his education. He has expressed a desire to do further studies in Australia. The Tribunal acknowledges that both the Applicant and his family will suffer some degree of psychological hardship and disappointment if his visa is cancelled and he is forced to return to India without a Master’s degree. However, as noted above, he has been given ample opportunity to complete the degree and has either been unable or unwilling to do so. The Applicant already has a Bachelor’s degree obtained from India. He will therefore return to India not without a higher education qualification.

Applicant’s Behaviour towards Department

1. The Tribunal has given consideration to the Applicant’s past and present behaviour towards the Department. There is no adverse evidence before the Tribunal in that regard.

Other Visa Holders

1. There do not appear to be any consequential cancellations under s 140 of the Act that will follow if the Applicant’s visa is cancelled.

Legal Consequences

1. The Tribunal notes that if his visa is cancelled, the Applicant will become an unlawful non-citizen and liable to detention under s 189 and removal under s 198 of the Act if he does not voluntarily depart Australia. A bar under s 48 of the Act will be imposed, limiting his options to apply for further visas from within Australia. He will also be subject to a three-year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Criterion 4013 to be met. However, these are all the intended consequences of the legislation when a visa is cancelled on these grounds. They reflect the seriousness of the breach of a visa condition.

2. The Tribunal notes that the Applicant may be eligible to apply for a bridging visa to allow him to make arrangements to depart Australia. He is a citizen of India and holds a current passport for that country so can return there. While detention and forcible removal from the country are significantly coercive powers, they will only eventuate if the Applicant does not co-operate with authorities in giving effect to his departure from Australia.

International Obligations

1. The Tribunal notes that Australia’s international obligations do not appear to be engaged by the circumstances of this case.

Other Relevant Matters

1. There do not appear to be any other relevant matters material to the outcome of the present review application.

Conclusion

1. In all the circumstances, the Tribunal is satisfied that the Applicant’s visa ought to be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the Applicant’s Student (Temporary) (Class TU) (Subclass 500) visa.

Dr Jason Harkess
Member