Brar (Migration)

[2024] AATA 2197

Brar (Migration) [2024] AATA 2197 (18 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Varinder Singh Brar

CASE NUMBER:  2219154

HOME AFFAIRS REFERENCE:               BCC2016/3805258

MEMBER:Gabrielle Cullen

DATE:18 June 2024

PLACE OF DECISION:  Sydney

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

Statement made on 18 June 2024 at 10:28am

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – enrolment cancelled – period of unlawful residence – applicant changed to vocational courses – lengthy gap on studies – limited academic progress – decision under review affirmed  

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 127, 140, 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 21 December 2016 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 (Cth) (the Act).

2. The delegate on 21 December 2016 cancelled the visa under s 116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The Tribunal received an application for review of the delegate’s decision on 27 December 2022. The Tribunal has formed the view that the notification by the Department of cancellation under s 116 of the Act was invalid because it did not convey which part of the Act provided for the review of the decision as required under s 127(2)(b). Therefore, for the reasons set out in Parata [2021] FCAFC 46 the consequence of the failure to correctly notify the applicant of his review rights from the cancellation of his visa is that the time within which the applicant must lodge his application to the Tribunal to review the primary decision and pay the prescribed fee had not commenced. As such, the Tribunal finds that it has jurisdiction to consider the application for review.

4. The applicant appeared before the Tribunal via video on 6 June 2024 to give evidence and present arguments. He was assisted with an interpreter in the Punjabi and English languages.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994. If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with condition 8202?

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

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

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

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

8. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

9. In a pre-hearing submission, the applicant provided a copy of the decision record of the delegate under review dated 21 December 2016. The decision notes the applicant was not enrolled from 29 February 2016 until the date of that decision. The PRISMS record raised with the applicant at the hearing, via s 359AA, indicates the applicant was not enrolled from 29 February 2016 as the education provider cancelled his enrolment on the basis of unsatisfactory course progress while enrolled in the Certificate III in Commercial Cookery which was to be studied from 3 August 2015 to 16 July 2016, as part of a packaged course of study leading to a Diploma of Hospitality.

10. The decision record also set out that the applicant received a notice of intention to consider cancellation (NOICC) of his visa on 12 December 2016. The Tribunal is satisfied that the NOICC was validly issued. The applicant did not respond to the NOICC.

11. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study between 29 February 2016 and 21 December 2016. The applicant also did not dispute that he had not complied with condition 8202(2) of his visa.

12. Therefore, on the evidence before it, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (COE) in a registered course or a full‑time course of study or training from 29 February 2016 until his visa was cancelled on 21 December 2016. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

13. The Tribunal is therefore satisfied that the grounds for cancellation in s 116(2)(b) exist.

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

15. 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’.

    Background

16. The applicant is a 30‑year‑old single man from India. He was granted a Subclass 573 visa offshore on 23 April 2014 valid to 15 March 2019 to study a Certificate IV in Hospitality, Diploma and Advanced Diploma of Hospitality and a Bachelor of Business in Perth. He arrived in Australia on 13 May 2014 as the holder of that visa. He completed part of the Certificate IV in Hospitality studied from 21 July 2014 to 26 June 2015.[1] He then changed to study a Certificate III in Commercial Cookery with a different education provider in Perth, the College of Innovation and Industry Skills,[2] from 3 August 2015 to 16 July 2016, followed by a Certificate IV in Hospitality and Diploma of Hospitality. His enrolment was cancelled for unsatisfactory course progress in the Certificate III in Commercial Cookery on 29 February 2016, as were the subsequent packaged courses. He undertook no further study. A no study condition was placed on his visa on 3 January 2023[3] following his application to the Tribunal for review of the Department decision on 27 December 2022. In his pre-hearing submission he provided COEs indicating proposed study of a Certificate III in Commercial Cookery from 5 July 2024 to 5 July 2025 and a Certificate IV in Kitchen Management from 4 August 2025 to 2 February 2026, followed by a Diploma of Hospitality Management from 2 March 2026 to 31 August 2026. He indicated at hearing he was aware he did not hold a visa from when his visa was cancelled on 21 December 2016 and he applied for review, which resulted in him being granted a bridging visa on 3 January 2023 with a no study condition attached.

    [1] He provided an academic record showing completion of this course.

    [2] As advised by the applicant at hearing.

    [3] Course study history and visa condition raised with him via s 359AA at hearing.

17. The applicant provided a pre-hearing submission addressing why the Tribunal should not exercise it discretion to cancel the visa, which has been considered below. As well as providing COEs referred to above as to future study, he provided evidence of studies completed in India including up to Year 12, and the Department decision record. As to why the visa was cancelled, he referred to being enrolled in a Certificate IV in Commercial Cookery from 18 July 2016 to 4 February 2017 leading to a Diploma of Hospitality from 6 February 2017 to 22 February 2017 at the College of Innovation and Industry Skills. He claimed changing his education provider from Perth to Melbourne resulted in a visa condition breach and visa cancellation which he did not know would happen and he was not aware of. He said he was not aware of visa conditions at all other than the requirement to work limited hours. He said with the change in education provider from Western Australia to Melbourne he spoke to an agent who promised to assist him in completing the enrolment process but failed to ensure his enrolment. He referred to his request to study after he applied to the Tribunal being refused by the Department.

18. The applicant also provided evidence at the Tribunal hearing as to why the visa should not be cancelled when the below matters were raised with him. At the end of the hearing he was asked if there were any other reasons why the Tribunal should or should not exercise its discretion to cancel or not to cancel the visa. He confirmed he was aware his visa was cancelled from 21 December 2016 and that he did not hold a visa until he applied to the Tribunal for review of the decision and he was then granted a bridging visa, which has condition 8207 – no study – attached to it. The Tribunal raised with him via s 359AA that his study in the Certificate III in Commercial Cookery was cancelled for unsatisfactory progress on 29 February 2016 and there is no evidence of any further study until his recent submission of COEs to commence study from July 2024. At first he requested 4 days to comment or respond in writing to the s 359AA information raised but at the end of the hearing he indicated he was of the view he had responded to the information raised at the hearing and he did not need further time to respond in writing.

    The purpose of the applicant’s travel and stay in Australia and whether the applicant has a compelling need to travel or remain in Australia

19. The purpose of the visa grant was for the applicant to travel and stay in Australia to study. The applicant indicated to the Tribunal at hearing that his purpose for coming to Australia was to study a packaged course leading to a Bachelor of Business. The evidence indicates the applicant completed units towards the Certificate IV in Hospitality studied from 21 July 2014 to 26 June 2015, which was part of the packaged course, but then changed his enrolment to study a Certificate III in Commercial Cookery with a different education provider in Perth from 3 August 2015 to 16 July 2016, leading ultimately to a Diploma of Hospitality. As noted above his enrolment was cancelled for unsatisfactory course progress in the Certificate III in Commercial Cookery on 29 February 2016. He undertook no further study and prior to the hearing submitted COEs to study a Certificate III in Commercial Cookery from 5 July 2024 to 5 July 2025 and a Certificate IV in Kitchen Management from 4 August 2025 to 2 February 2026, followed by a Diploma of Hospitality Management from 2 March 2026 to 31 August 2026.

20. At hearing the applicant said he came to Australia as he wanted to achieve a bachelor degree in business. While his evidence was lacking in detail at hearing as to why he enrolled in the packaged hospitality course leading to the Bachelor of Business, as he undertook the study and completed 12 units towards the Certificate IV in Hospitality studied from 21 July 2014 to 26 June 2015[4] the Tribunal accepts that the purpose of his travel and stay in Australia for the period of that course was to study.

    [4] As noted in the academic record submitted.

21. However, for the reasons that follow it does not accept that after completing that course his purpose of studying in Australia was or continues to be to study.

22. Firstly, the Tribunal considers his lack of course progress in the Certificate III in Commercial Cookery, with his enrolment being cancelled for unsatisfactory course progress, undermines his claim that his purpose for staying in Australia was to study. When repeatedly asked at hearing why his enrolment was cancelled, he initially said it was due to his move from Perth to Melbourne, as he had referred to in the written submission. However, he also said and confirmed that the move did not happen until October/November 2016, 8 or 9 months after his enrolment in the Certificate III in Commercial Cookery course was cancelled. When the Tribunal raised this at hearing he said he did not know the course was cancelled for unsatisfactory course progress and that he continued to attend up until the course was supposed to end on 16 July 2016. When raised with him at hearing how he could continue to attend when the COE had been cancelled he said he did not know and was only coming to know now. The Tribunal does not accept this as he previously accepted in the hearing he was not enrolled from February 2016 when the COE in the Certificate III in Commercial Cookery was cancelled. It has difficulty accepting he continued to attend when the COE had been cancelled.

23. Further, despite repeatedly claiming at hearing that he travelled to Australia to complete a Bachelor of Business, he was unable to answer in any detail why he then ceased enrolment in the packaged course leading to the Bachelor of Business and changed to study the Certificate III in Commercial Cookery, only leading to a Diploma of Hospitality with no further enrolment in a Bachelor of Business course. He said he did not know much and that is what the college advised him. In the pre-hearing submission he referred to lack of support from the education provider, but he did not mention this at the hearing when asked. The Tribunal is of the view if he were in Australia to study he would be able to provide consistent and detailed evidence as to why he changed to only the cooking and hospitality course, when his evidence is he came to Australia to achieve a bachelor degree in business.

24. Further, his evidence at hearing was that he knew his visa was cancelled on 21 December 2016 and he knew that he was in Australia without a visa until he applied for review to the Tribunal on 27 December 2022 and a bridging visa was granted on 3 January 2023 with a no study condition attached. While he claimed that he approached the Department so he could study, his evidence is this was only after he lodged an appeal to the Tribunal and a subsequent bridging visa was granted. As raised with him, the Tribunal is of the view that if he was in Australia to study, in that intervening period from December 2016 to December 2022, when he was without a visa, he would have attempted to regularise his status so he could study by contacting the Department seeking information as to how he could study. He said he was too stressed and scared to do so and was depressed and did not know what to do. He said he did not seek any medical help for the mental health issues but sought assistance from the chemist and friends. The Tribunal is of the view that if his mental health was impacted to that degree and for that length of time he would have sought medical assistance. As he was without a visa from December 2016 to December 2022, a period of 6 years, and only sought to study after he was granted a bridging visa with a no study condition, the Tribunal is of the view his purpose for staying in Australia was not and is not to study.

25. He claims in the written submission that as a result of a lack of support from the education provider, he failed to progress and decided to choose another education provider where his friends were studying, as they assured him of much better support. He refers to then enrolling in the Certificate IV in Commercial Cookery from 18 July 2016 to 4 February 2017, followed by the Diploma of Hospitality from 6 February 2017 to 22 February 2017. However, as raised with him these courses were part of the packaged course beginning with the Certificate III in Commercial Cookery where his enrolment was cancelled for unsatisfactory course progress on 29 February 2016, resulting in the higher courses in the package of courses also being cancelled. He did not refer to studying the Certificate III in Commercial Cookery in his written submission or the cancellation of his enrolment in that course. He claimed in the written submission that changing his education provider from Perth to Melbourne resulted in a visa condition breach and visa cancellation which he did not know would happen and he was not aware of. He said he was not aware of visa conditions at all other than the requirement to work limited hours. He said with the change in education provider from Western Australia to Melbourne he spoke to an agent who promised to assist him to complete the enrolment process but failed to ensure his enrolment. However, the move to Melbourne happened after his enrolment was cancelled on 29 February 2016 and he was studying those courses in Perth, not Melbourne. The Tribunal therefore does not accept his reasons for his lack of study.

26. It has considered the claim that he was not aware of visa conditions at all other than the requirement to work limited hours, which the Tribunal has difficulty accepting if his purpose was to study in Australia.

27. It has considered his request to study after he applied to the Tribunal, being refused by the Department, but notes that request is 6 years after his visa was cancelled on 21 December 2016. As noted above the Tribunal is of the view if his purpose was to stay and to study in Australia, he would have regularised his status or sought assistance from the Department so he could study within that period.

28. In making this finding the Tribunal has considered his recent enrolment in the Certificate III in Commercial Cookery from 5 July 2024 to 5 July 2025, Certificate IV in Kitchen Management from 4 August 2025 to 2 February 2026 and a Diploma of Hospitality Management from 2 March 2026 to 31 August 2026, and the pre-hearing submission outlining in detail why he wishes to study this course, the value to his future, the career opportunities and his reasons for choosing these courses. However, his enrolment in these courses and submissions as to why he wants to study these courses does not overcome the concerns outlined above.

29. The Tribunal notes his submission that he lost track and now wants to repair the damage done by completing the courses he is enrolled in from July 2024. It has also considered that he approached the Department after his bridging visa was issued with a no study condition seeking to study; however, these factors more than 6 years after the cancellation do not overcome the concerns outlined above.

30. The Tribunal is of the view that the applicant’s purpose in staying in Australia from around the end of 2015/beginning of 2016 was and is not to study.

31. As to whether there is a compelling need for him to remain in Australia, he said he wishes to remain and study in Australia as there are no similar courses in India. He referred to the courses he is enrolled in for 2 years, which he would finish, then return to India, study further to obtain a bachelor degree in business, obtain employment in hospitality, such as in a restaurant or hotel, and open his own restaurant or hospitality business. He initially said such courses were not available in India but when the Tribunal raised with him that it appeared there were cookery and hospitality courses in India available for him to study, as identified online,[5] he said he would not be able to continue to study in India if he did not study in Australia. In his written submission he noted that Indian schools do not offer hospitality courses that offer the practical and theoretical combination as courses do in Australia and that most hospitality students go out to the country to study. He noted most Indian schools offer theoretically based education. He referred to the benefits of studying in Australia as it is a world class system and that adds value to his future career.

    [5] For example Top Diploma in Hospitality & Tourism Colleges in India 2024 – Courses, Fees, Admission, Rank (careers360.com); Diploma in Hospitality Colleges in India | list of colleges in India (targetstudy.com)

1. It is accepted that the applicant would prefer to obtain his qualifications in Australia, and that they are more beneficial, with a more practical approach to teaching. It accepts the benefits of studying in Australia rather than India to his future career; however, the Tribunal is of the view there are study options available to him in India. Of concern is that the applicant did not refer to wishing to study in Australia so he could study further in India in his written submission, which he did at hearing. The Tribunal is of the view if this were the case, he would have mentioned it in the pre-hearing submission, which he did not.

2. As raised with him, the Tribunal is of the view there are various other study options available for his future study in India. The Tribunal has considered the applicant’s evidence; however, on the material before it, the Tribunal is not satisfied that not being able to complete these courses in India amounts to a compelling need to remain in Australia.

3. He also referred to the shame, disappointment and loss of trust of his family if he returns without further study. In his written submission he noted he would be considered a failure if he returned to India before completing his education. While the Tribunal accepts he and his family would feel shame if he returned without further study in Australia, and that he would lose his family’s trust, be unable to complete his education and be considered a failure, it notes his evidence that such shame and loss of trust would not amount to harm from his parents. The Tribunal therefore does not accept that this reason amounts to a compelling need for him to remain in Australia.

4. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

   The extent of compliance with visa conditions

5. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 29 February 2016 when his enrolment was cancelled to 21 December 2016 when the decision was made to cancel his visa. The Tribunal considers this period of 10 months to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa. He has submitted he was aware of the non‑compliance in this regard both at hearing and in his written submission, although he also said at hearing he was not aware his enrolment was cancelled for unsatisfactory course progress in the Certificate III in Commercial Cookery and continued to attend until the course finished in July 2016. The Tribunal has considered this and does not accept this as he indicated prior in the hearing he was aware his enrolment was cancelled from February 2016. It also does not accept his claim that he continued to attend the classes after his enrolment was cancelled in February 2016.

6. The Tribunal notes that the enrolment in the Certificate III in Commercial Cookery was cancelled for unsatisfactory course progress on 29 February 2016 which may indicate a breach of condition 8202(3). He said he did not know this and submitted assignments on time, continued to attend and only found this out later. The Tribunal is of the view that if he were enrolled in a course and attending he would have been advised his enrolment was cancelled and why.

7. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his student visa.

8. It notes his submission that he lost track and now wants to repair the damage done by completing the courses he is enrolled in from July 2024.

9. However, considering the period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation and that the enrolment was cancelled for unsatisfactory course progress, the Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

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

10. At hearing the applicant referred to the shame that will have to be endured from and by his parents if he returns without the qualifications. He said if he returns without an education he will have lost the trust of his parents as they have spent half their savings on him studying in Australia and have had to borrow money. He said he will be considered a failure. He confirmed it was only shame and loss of trust and they would not harm him. He said they have had to support him as he has been unable to work since a no work visa condition was imposed on his bridging visa in January 2023. This is in contrast to evidence in his pre‑hearing submission as to his running income and savings, amounting to $38,710.

11. As noted above, He said at hearing that he wishes to remain and study in Australia as there are no similar courses in India. He referred to the courses he has enrolled in for 2 years, that he would finish those and then return to India, study further to obtain a bachelor degree in business, obtain employment in hospitality, in a restaurant or hotel and open his own restaurant or hospitality business. He initially said such courses were not available in India but when the Tribunal raised with him that it appeared there were cookery and hospitality courses in India available for him to study, as identified online said he would not be able to continue to study in India if he did not study in Australia. In his written submission he noted that Indian schools do not offer hospitality courses that offer the practical and theoretical combination as courses do in Australia and that most hospitality students go out to the country to study. He noted most Indian schools are theoretically based education. He referred to the benefits of studying in Australia as it is a world class system and that adds value to his future career.

12. It is accepted that the applicant would prefer to obtain his qualifications in Australia, and that they are more beneficial, with a more practical approach to teaching. It accepts the benefits of studying in Australia rather than India to his future career; however, the Tribunal is of the view there are study options available to him in India.

13. Of concern is that the applicant did not refer to wishing to study in Australia so he could study further in India in his written submission, which he did at hearing. The Tribunal is of the view if this were the case, he would have mentioned it in the pre-hearing submission, which he did not.

14. As set out above, the Tribunal is satisfied that the applicant still has study options available to him in his home country, or elsewhere, to improve his future employment prospects and to assist his family financially. It has also found above that his purpose for continuing to remain and stay in Australia is not to study.

15. While it understand there would be a degree of hardship to the applicant and his family as to his lack of completing the courses he has now enrolled in, the Tribunal is not satisfied his purpose in Australia is to study and notes there are courses available in India he can study.

16. The Tribunal gives this low weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

17. In his pre-hearing submission the applicant said the cancellation of his enrolment arose because of the move from Perth to Melbourne and that he did not know this would result in a visa breach as he was not aware of the visa conditions. He said he had no warnings or cancellations transmitted. He said with the move from Perth to Melbourne he spoke to an agent who promised to assist him with completing the enrolment process but he failed to do so and as a result he breached condition 8202. However, his evidence at hearing was that he did not move from Perth to Melbourne until October/November 2016 and the Tribunal questions how therefore these factors affected the cancellation of his enrolment, which lead to the breach of condition 8202, when his enrolment ceased on 29 February 2016.

18. The applicant said at hearing he did not know his enrolment in the Certificate III in Commercial Cookery was cancelled and continued to attend the course until its completion. However, in contrast, he accepted at the hearing that he was not enrolled from 29 February 2016 until the Department’s decision to cancel the visa on 21 December 2016. It is difficult for the Tribunal to accept on the evidence before it, as raised with the applicant, that he did not know his enrolment was cancelled on 29 February 2016 and he continued to attend the course after this date.

19. On the evidence, it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa.

20. The Tribunal gives this factor no weight in exercising its discretion to cancel the visa.

    Past and present behaviour of the visa holder toward the Department

21. The applicant was in Australia without a valid visa from 21 December 2016 until his application to the Tribunal on 27 December 2022, and then was placed on a bridging visa as a consequence on 3 January 2023. The Tribunal asked why he did not contact the Department in the intervening period to regularise his status. His evidence at hearing was that he knew his visa was cancelled on 21 December 2016 but he was scared, stressed and depressed and did not know what to do. His evidence is he did not see a doctor due to these factors, which the Tribunal might expect if he was so severely depressed and stressed he was unable to take any action.

22. In his pre-hearing submission he said he was not aware he could apply for review of the cancellation decision on 21 December 2016 and needed to respond. While the NOICC decision from the Department was defective,[6] it still advised that he could apply for review, that he was in Australia unlawfully and how to apply for further visas. The Tribunal has difficulty accepting he did not know these matters when he said he received the decision cancelling his visa and knew it was cancelled on 21 December 2016. He also submitted the Notice dated 21 December 2016 to the Tribunal with his Application for Review.

    [6] It was invalid because it did not convey which part of the Act provided for the review of the decision as required under s 127(2)(b), but still outlined the review rights.

23. The Tribunal considers being in Australia without a valid visa to be a serious matter and is of the view this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

    Whether there would be any consequential cancellations under s 140

24. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor no weight.

    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

25. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

26. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and deportation. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

27. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act that he may not be granted a further visa for 3 years from the date of cancellation. It is noted that this date runs from the date of the delegate’s original decision and the applicant has already served the 3-year period. However, it is accepted that cancellation may also restrict the applicant’s future ability to make a successful visa application. The cancellation of the visa has the consequence that the applicant would have difficulties in obtaining any further visas in Australia; however, those are also intended and legitimate consequences of cancellation.

28. The Tribunal gives this consideration neutral weight.

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

29. When asked by the Tribunal whether he had any fear of returning to India he said there were no civil or political issues that he would face returning to India and that he did not fear returning to India. He again referred to the shame and lack of trust he would face from his family if he returned without completing any courses, but said this would not amount to harm. The applicant is not married and has no dependants.

30. The Tribunal therefore has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa were cancelled. While it accepts the applicant’s family would think he is a failure and that he and his family would feel shame and a lack of trust, there is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

31. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Convention on the Rights of the Child or that it would be in contravention of the Convention Against Torture.

32. The Tribunal gives this consideration neutral weight.

    Any other relevant matters

33. The applicant requested he be given a second chance to study and referred to the COEs submitted to show he wishes to study, will complete the courses in the proposed 2 years and return home to India. He referred to the value of the courses to his future. He referred to requesting that the Department lift the no study condition. He said he was not aware he could apply for a review of the decision and that he needed to respond to the Notice. While the Notice of the cancellation decision from the Department was defective,[7] it still advised that he could apply for review. The Tribunal has difficulty accepting he did not know this when he said he received the decision cancelling his visa and knew it was cancelled on 21 December 2016. He submitted the Notice dated 21 December 2016 to the Tribunal which referred to how to apply for merits review.

    [7] It was invalid because it did not convey which part of the Act provided for the review of the decision as required under s 127(2)(b) but still outlined the review rights.

34. The Tribunal has considered he has the savings to study in Australia as outlined in the pre‑hearing submission. It has considered he has not been able to study while holding the bridging visa and while unlawful. It considers he had submitted COEs to study from July 2024.

35. The Tribunal has considered the applicant’s circumstances individually and cumulatively. It is satisfied that there are limited aspects that are favourable to the applicant. The Tribunal is not satisfied that the reasons he has put forward left him unable to study and that his failure to maintain enrolment was outside his control. The Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. It notes that the cancellation of the visa is the intended consequence of breach of the relevant condition. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. It considers the period of him being in Australia without a visa for 6 years from 21 December 2016 to be serious.

36. Overall, the Tribunal considers that there are limited aspects favourable to the applicant and these do not outweigh the reasons to cancel the visa.

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

    DECISION

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

    Gabrielle Cullen
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)     the holder is enrolled in a registered course; or

    (b)     in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.