Chadalavada (Migration)

[2019] AATA 4431

Chadalavada (Migration) [2019] AATA 4431 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhavyatej Chadalavada

CASE NUMBER:  1718328

HOME AFFAIRS REFERENCE(S):           BCC2017/1738225

MEMBER:Michael Ison

DATE:23 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 23 July 2019 at 2:58pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – medical treatment in India – limited academic progress – family emotional hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, s 116
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 8 August 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 delegate cancelled the visa on the basis that the applicant had breached condition 8202(2)(a) of Schedule 8 to the Migration Regulations 1994 (the Regulations) by failing to be enrolled in a registered course of study since 18 October 2016. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant is a 28 year old Indian national who arrived in Australia on 7 March 2014 as a 23 year old and the holder of a Student (Subclass 573 – Higher Education Sector) visa to study a Master of Telecommunication and Networking at La Trobe University.

4. On 12 July 2017 a delegate of the Minister issued a Notice of Intention to Consider Cancellation of a visa (NOICC) under s.116 of the Act to the applicant.[1] The NOICC complied with the requirements of s.119 of the Act.

   [1] Tribunal file, folios 48 to 50.

5. The applicant appeared before the Tribunal on 18 June 2019 to give evidence and present arguments.

6. For clarity only, the Tribunal refers to the applicant’s Student visa as the applicant’s visa in these reasons. The applicant currently holds a Bridging E (Subclass 050) visa which the Tribunal refers to as a Bridging E visa in these reasons.

7. The applicant provided the Tribunal with a copy of the delegate’s decision dated 8 August 2017. That decision reproduced in full the applicant’s response on 19 July 2017 to the NOICC dated 12 July 2017.

8. On the morning of the hearing, the applicant’s representative submitted to the Tribunal a 37 page submission[2] that included a copy of the following documents:

   ·Visa Grant Notice for a Student (Subclass 573) visa granted on 23 January 2016 and valid to 15 March 2018;[3]

   ·the NOICC;

   ·the applicant’s response to the NOICC dated 19 July 2019 sent by his representative;[4]

   ·Offer of Enrolment from La Trobe University for a Master of Telecommunications and Network Engineering dated 27 December 2013;[5]

   ·La Trobe University academic transcript dated 9 February 2015;[6]

   ·Offer of Enrolment from Holmes Institute for a Master of Business Administration (MBA) and Master of Professional Accounting (MPA) dated 18 January 2016;[7]

   ·Offer of Enrolment from Holmes Institute for an MBA and MPA dated 23 August 2018;[8] and

   ·An undated medical certificate from Sri Sathya Sai Institute of Higher Medical Sciences in Andhra Pradesh, India that refers to treatment of the applicant between 26 November 2016 and 26 May 2017.[9]

   [2] Tribunal file, folios 32 to 60.

   [3] Tribunal file, folios 42 to 45 (back).

   [4] Tribunal file, folio 52 (back).

   [5] Tribunal file, folio 51.

   [6] Tribunal file, folio 52.

   [7] Tribunal file, folios 53 and 54.

   [8] Tribunal file, folios 55 and 56 (back).

   [9] Tribunal file, folio 57 (back).

9. The applicant also handed the Tribunal a one page Confirmation of Enrolment from Holmes Institute dated 23 August 2017 for an MBA from 23 August 2017 to 31 December 2018.[10]

   [10] Tribunal file, folio 61.

10. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

11. At the commencement of the hearing the Tribunal explained to the applicant how the hearing would be conducted and the determinative issues before the Tribunal including the ground for cancellation under s.116(1)(b) and condition 8202(2)(a). The Tribunal also explained that cancellation is not mandatory under s.116, summarised the discretionary considerations the Tribunal would consider if it found a ground to cancel the applicant’s visa existed and advised the applicant he would be afforded the opportunity to tell the Tribunal of any matter relevant to his review not addressed by the Tribunal. The applicant told the Tribunal he had read and understood the delegate’s decision and also understood the Tribunal’s explanation.

12. On 20 June 2019 the Tribunal sent the applicant a letter in accordance with the procedure set out in ss.359A and 359(2) of the Act inviting the applicant to comment on or respond to information which would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision of the delegate that is under review. The Tribunal particularised that information as information contained in the applicant’s Provider Registration and International Student Management System (PRISMS) record and the applicant’s movement record, both dated 15 March 2019, the details of which are discussed below. Copies of both reports were attached to the Tribunal’s letter.

13. The Tribunal’s letter explained what the PRISMS and movement records are, explained the relevance of the information in them to the applicant’s review and also explained the consequences for the applicant’s review if the Tribunal relied on that information. The applicant’s representative responded to the Tribunal’s letter on 15 July 2019 and the details of that response are set out in the Tribunal’s reasons below.

14. 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

15. The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8202. 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?

16. 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)(a) and (b).

17. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course in breach of condition 8202(2)(a). The delegate found:

    Based on evidence available to me in the Provider Registration and International Student Management System (PRISMS), Bhavyatej Chadalavada has not been enrolled in a registered course of study since 18 October 2016.[11]

    [11] Tribunal file at folio 3.

18. The applicant’s evidence to the Tribunal was that he:

    ·Studied the Master of Telecommunications and Network Engineering in 2014 and 2015 but passed only three of eight units in 2014 and none of six units in 2015;

    ·Enrolled in the combined MBA and MPA in January 2016;

    ·Studied two semesters of the MBA in 2016 and passed three of four units in semester one but did not complete any units in semester two as he chose not to sit the exams;

    ·Returned to India on 21 November 2016 but did not seek a deferment of his studies as he expected to only be in India for a couple of weeks;

    ·Spoke to his father in India which caused his father to become so concerned about the applicant’s health that he took the applicant to a doctor who admitted the applicant as an-patient for two months and the applicant received ongoing medical treatment in India until February 2017 and subsequently returned to Australia in May 2017;

    ·Received the NOICC on 12 July 2017;

    ·Responded to the NOICC on 19 July 2017;

    ·Sought to re-enrol in the MBA and MPA;

    ·Received notification his Student visa had been cancelled on 8 August 2017;

    ·Was granted a Bridging E visa on 17 August 2017;

    ·Received an offer of enrolment in the MBA and MPA on 23 August 2017 but did not undertake any further study; and

    ·Sought to have the no work and no study conditions attached to his Bridging E visa waived in March 2018 but was only successful in having the no work condition waived.

19. The applicant acknowledged he was not enrolled in a registered course of study between 18 October 2016 until 23 August 2017. The applicant agreed that there is a ground to cancel his visa for breach of condition 8202(2)(a) that was attached to his visa.

20. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

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

22. 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 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

23. The applicant came to Australia to study at the Higher Education Sector level. The applicant has not completed any course since arriving in Australia.

24. The Tribunal discussed this consideration with the applicant who told the Tribunal if he was granted another Student visa his intention is to resume his MBA and MPA studies at Holmes Institute, complete both courses and then return to India to manage an interior design and construction company the applicant says he started with a cousin in India in 2017.

25. The Tribunal discussed with the applicant whether he had any compelling need to stay in Australia and the applicant acknowledged his only reason to stay in Australia was to complete his study.

26. The Tribunal finds the purpose for which the applicant’s visa was granted ended on 18 October 2016 when he was no longer enrolled in any course of study and in the applicant’s circumstances he does not have a compelling need to stay in Australia.

27. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa. The Tribunal gives this consideration some weight.

    The extent of compliance with visa conditions

28. The applicant’s evidence is that he has complied with all conditions of both his visa (apart from the enrolment condition) and Bridging E visa. There is no information before the Tribunal that the applicant has breached any other condition of his visa prior to its cancellation in August 2017.

29. The applicant gave evidence to the Tribunal that no work and no study conditions were attached to his Bridging E visa when it was granted to him on 17 August 2017. The applicant told the Tribunal that he subsequently had the no work condition waived in March 2018 but the no study condition remains attached to his Bridging E visa. The Tribunal accepts this evidence.

30. The applicant told the Tribunal he has been working as an Uber driver on weekends and has worked up to 40 hours per fortnight. There is no information before the Tribunal to indicate that the applicant has breached the condition of his Bridging E visa that allows him to work in Australia.

31. The applicant was enrolled in an MPA and MBA on 23 August 2017 according to PRISMS, potentially in breach of the no study condition attached to his Bridging E visa granted on 17 August 2017. The applicant’s evidence to the Tribunal during the hearing was that he did not undertake any further study after his visa was cancelled on 8 August 2017.

32. The Tribunal put this matter to the applicant in its ss.359A and 359(2) letter sent on 20 June 2019, noting that PRISMS recorded the applicant as enrolled in an MPA and MBA from 23 August 2017 and that these enrolments were both cancelled on 12 April 2018 when the “Student Notifies of Cessation of Studies”. The applicant’s representative responded to the Tribunal’s letter on 15 July 2019 but did not respond to this issue in the response to the Tribunal’s letter (which is reproduced in full below).

33. There is no information before the Tribunal to indicate that the applicant undertook further study after accepting his enrolment in the MPA and MBA. Therefore, the Tribunal does not make any adverse finding against the applicant in relation to his 23 August 2017 enrolments in the MPA and MBA, both of which were subsequently cancelled.

34. The Tribunal finds that there is no conclusive information before it that the applicant has breached any condition attached to his visa other than condition 8202(2)(a).

35. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

36. The applicant told the Tribunal if his visa is cancelled it would cause him and his family considerable financial, psychological and emotional hardship. The applicant’s evidence is he and his family have spent over AU$50,000 on his study in Australia in the expectation the applicant will gain Australian qualifications and as the only son of his parents will gain better paying employment upon his return to India to the benefit of the whole family.

37. The applicant explained to the Tribunal that it was his father’s wish that the applicant study telecommunications and it was only when the applicant failed those studies, talked to his cousin about starting their interior design and construction that the applicant enrolled in the MBA and MPA to assist his cousin to run that business, which he has been doing from Australia since May 2017. The applicant’s evidence is his father has only given him qualified support for the applicant’s MBA and MPA studies and if he returns to India without any Australian qualification his father may not talk to him again.

38. The applicant’s evidence is he is also concerned that if he returns to India without an Australian qualification his cousin may ask the applicant to leave their interior design and construction business because the applicant’s cousin wants to grow that business on a global scale and the applicant will not be able to assist to do this without his MBA and MPA. The applicant also told the Tribunal that having those Australian qualifications would help the business to secure Indian government projects because returning students with overseas Masters qualifications are well regarded by the Indian government for the practical rather than just book knowledge they have gained.

39. When the Tribunal discussed this with the applicant he clarified that even though the interior design and construction business has been operating successfully to date, and has eight employees, his role in the business is not secure if he cannot contribute to its future success.

40. The Tribunal accepts that the applicant has genuine concerns for his relationship with his parents and in this regard cancellation would cause the applicant psychological and emotional hardship.

41. The Tribunal makes no finding about the impact cancellation of the applicant’s visa would have on his role in the interior design and construction business he operates with his cousin in India, as the applicant’s evidence in this regard seemed speculative to the Tribunal and the Tribunal did not receive any evidence from the applicant’s cousin. However, the Tribunal finds that the applicant’s concern about his future role in that business is causing the applicant some psychological hardship.

42. The Tribunal hearing had initially been scheduled for 28 March 2019 but the applicant wrote to the Tribunal on 18 March 2019 requesting a three month adjournment so he could arrange for his parents to come from India to give evidence at the hearing and also obtain “more supporting documents for India” (sic). The Tribunal granted the applicant the requested adjournment and immediately rescheduled the hearing for 18 June 2019.

43. The applicant’s parents did not attend the hearing. When the Tribunal discussed this with the applicant he explained that he was in the process of arranging Visitor visas for his parents to come to Australia when his 97 year old maternal grandmother had become critically ill. The applicant told the Tribunal he expected his grandmother to pass away in the next 10 days or so. The applicant did not provide any documentation supporting these claims.

44. The Tribunal offered to schedule another hearing to take evidence from the applicant’s parents, including by telephone if that was more convenient rather than incurring the expense of travelling to and from Australia. The applicant explained that due to religious and cultural obligations it would be many months after his grandmother’s death before his parents could give evidence.

45. The Tribunal offered to take the evidence of the applicant’s parents by statutory declaration if the applicant felt his parents may be grieving at the time and this could affect them giving evidence in person or by telephone. The applicant agreed this may be the best way to provide his parents evidence and agreed to provide their declarations to the Tribunal by 5 July 2019. The Tribunal explained to the applicant that if he needed more time to provide the declarations due to the intervening death of his grandmother or any other cause, then the Tribunal would consider any request for an extension of time to provide the declarations.

46. When the applicant’s representative responded to the Tribunal’s letter under ss.359A and 359(2) of the Act on 15 July 2019 the response included identically worded statutory declarations from the applicant’s parents, both declared on 3 July 2019. According to the certified translations provided to the Tribunal by the applicant, his parents declared:

    My son bhavyatej had came to Australia for persuing the masters and I have spent around 60000$ on him due to his helth he was unable to finish it and it took the treatment for the depression in satyasai medical centre, and now he is all good to continue his studies and I request you to please let him finish his masters so that he can settle in the life this career will be good. (sic) [12]

    [12] Tribunal file, folio 66.

47. The Tribunal accepts that the applicant and his parents in India have spent a significant amount of money on the applicant’s education in Australia to date. The Tribunal finds if the applicant’s visa is cancelled and he returns to India without an Australian qualification the applicant and his parents would consider that this expenditure has been wasted and the applicant may not be able to get a job that would pay as much as he could earn holding Australia qualifications such that cancellation would cause both the applicant and his family financial hardship.

48. During discussions with the applicant about this consideration the applicant told the Tribunal he has a sister in India who would be proud of him if he gets an overseas qualification and runs a business in India but she would be disappointed if he doesn’t do so and may be embarrassed by the family of her husband who could ask her why the applicant was away so long but has not gained an Australian qualification. The Tribunal accepts this evidence.

49. The applicant also told the Tribunal that if he gains an Australian qualification and returns to India to successfully run the interior design and construction business that would make his parents proud and happy and he would also be very happy. The Tribunal accepts this evidence.

1. The Tribunal finds that if the applicant’s visa is cancelled he, his parents and his sister will suffer emotional hardship as a result.

2. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.

   The circumstances in which the ground for cancellation arose

3. The circumstances in which the ground for the cancellation of the applicant’s visa arose are summarised in paragraph 18 of these reasons.

4. The applicant submitted to the Tribunal that he was under great pressure from his parents in India for failing to achieve good grades in his original Masters course and then also in his MBA course.

5. The applicant told the Tribunal that he decided to return to India in November 2016 to speak to his father to explain in person the change in his study to the MBA and MPA and to explain the business he had started with his cousin. The applicant told the Tribunal he did not seek a deferment of his enrolment before leaving for India as he expected to be in India only for “a couple of weeks”.

6. The applicant’s evidence is he explained his situation in such emotional terms to his father that his father thought there was something wrong with him and took him to a doctor at the Sri Sathya Sai Institute of Higher Medical Sciences in Andhra Pradesh. The applicant’s evidence is that after two sessions with the doctor the doctor asked the applicant to stay as an in-patient for treatment and the applicant ended up staying as an in-patient for two months.

7. The Tribunal discussed with the applicant his medical treatment in India and the medical certificate the applicant had provided to the Tribunal in relation to that treatment. The Tribunal noted that the certificate said the applicant was treated between 26 November 2016 and 26 May 2017 but did not say how many times the doctor had seen the applicant in that time and did not mention any medical tests or other procedures or medication or other regime prescribed to the applicant.

8. The applicant explained he was not prescribed any medication but participated in Ayurveda treatment where attended a three to four hour session at the clinic every fortnight that included an hour of yoga, an hour of meditation, an hour of experiencing nature and an hour with the doctor. The applicant said his treatment was successful and he has continued his Ayuverdic practices, particularly the meditation and experiencing nature by going and staying in the country side and going for walks and has continued these practices since his return to Australia. The applicant also spoke of having founded a charitable organisation called K4A (Knowledge for All) with friends where they teach people in rural villages in India who do not even have smart phones what is happening in the world and how it may affect the villages so they have some knowledge of modern technology.

9. In the Tribunal’s ss.359A and 359(2) letter sent to the applicant on 20 June 2019, the Tribunal provided the applicant with a copy of his movement records and particularised the relevant information as showing, contrary to his oral evidence, that he departed Australia on 21 November 2016 and returned to Australia on 16 December 2016, a period of 25 days.

10. The Tribunal’s letter informed the applicant that the relevance of this information to his review is that if the Tribunal does not accept or gives less weight to his oral evidence about not deferring his studies and his subsequent medical treatment, the Tribunal may make credibility findings against the applicant and if the Tribunal finds a ground for cancellation exists, then when the Tribunal considers the discretionary considerations it may find the circumstances in which the applicant’s visa was cancelled were largely or entirely within his control. The Tribunal’s letter also informed the applicant as his movement records indicate he returned to Australia on 16 December 2016 the Tribunal may also find that he had almost seven months to remedy his breach of condition 8202(2)(a) prior to receiving the NOICC on 12 July 2017 and for nearly eight months prior to the cancellation of his visa on 8 August 2017. The Tribunal’s letter also stated that as the applicant’s response to the NOICC stated he had received medical treatment in India between November 2016 and May 2017 the Tribunal may find the applicant was prepared to tell the Department whatever he felt would assist him to achieve the migration outcome the applicant seeks rather than the truth.

11. The Tribunal’s letter explained the consequence of the Tribunal relying on this information for the applicant’s review would be that if the Tribunal made these findings they each would weigh in favour of the cancellation of the applicant’s visa and therefore the relevant information in both the applicant’s PRISMS and movement record would be the reason, or a part of the reason, for the Tribunal to affirm the decision under review. The applicant was invited to respond, in accordance with the statutory framework, by 4 July 2019.

12. As noted above, the applicant’s representative responded to the Tribunal’s letter on 15 July 2019. This response included a submission on this issue from the applicant’s representative, which the Tribunal reproduces in full:

    This is to confirm that Mr. Chadalavada’s travel dates to and from India that you have highlighted to us is correct. It was an error in his submission of circumstances that was unfortunately overlooked and Mr. Chadalavada had no intention of providing misleading information to any person. Another migration agent had managed Mr. Chadalavada’s application prior to him seeking my representation and the handover of information (specifically, the duration that he was in India and accordingly how long he was seeking treatment while in India) was not accurate. In Mr. Chadalavada’s medical certificate it states that he was undertaking treatment ‘…from 26-11-2016 to 26-05-2017’ so this is where the error in his submission of circumstances may be derived from. Mr. Chadalavada did not undergo treatment between November 2016 to May 2017 for high blood pressure and depression from India, rather Mr. Chadalavada’s health issues were diagnosed by Dr. A.N Safaya in India on November 2016 and Mr. Chadalavada’s continued the Ayurveda treatment when he returned to Australia.

    Mr. Chadalavada would like to submit that he began his Ayurveda treatment in India and he then continued this treatment from Australia over the next six months before his Student visa was cancelled. As part of his treatment, Mr. Chadalavada visited several towns in Australia such as Nyah, Mildura, Howlong, and Shepparton and practised the meditation to cure his depression and high blood pressure naturally. (sic) [13]

    [13] Tribunal file, folio 70.

13. The Tribunal does not accept this explanation. The Tribunal was quite specific in its questioning of the applicant on this issue during the Tribunal hearing. The applicant gave spontaneous, unprompted and unequivocal oral evidence to the Tribunal that he was an inpatient at the Sri Sathya Sai Institute of Higher Medical Sciences for two months. When the Tribunal sought clarification from the applicant on his period of treatment in India, specifically whether he was under treatment from November 2016 to May 2017 the applicant responded that he was not treated for that whole time but was treated in India until February 2017.

14. On the evidence before the Tribunal, including the submission on behalf of the applicant referred to above, the Tribunal finds the applicant’s oral evidence of being an inpatient in India for two months was untrue. The Tribunal also finds that the applicant’s oral evidence of being under medical treatment in India until February 2017 was untrue. The Tribunal finds that the applicant stayed in India for only 25 days, departing Australia on 21 November 2016 and returning to Australia on 16 December 2016.

15. The applicant has a poor academic record of failing units and not sitting exams and had not completed any course in Australia from his arrival in 7 March 2014 up to the cancellation of his enrolment in the MPA and MBA on 18 October 2016.  The applicant’s misleading evidence about his stay and medical treatment in India in November – December 2016 casts doubt on the credibility of his evidence of suffering depression and high blood pressure due to his parents’ expectations and his poor academic performance as the key reasons for not studying.

16. The Tribunal does not accept, based on the evidence before it, that the applicant could not enrol or undertake study after his return to Australia on 16 December 2016 for reasons beyond his control. The applicant had nearly seven months between his return to Australia from India and the receipt of the NOICC where he failed to remedy the breach of his visa. The Tribunal considers this a significant breach of the applicant’s Student visa in the circumstances of the cancellation of that visa as explained above.

17. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s Student visa and the Tribunal gives this consideration great weight.

    The past and present behaviour of the applicant towards the department

18. The delegate found there was no evidence that the applicant had been uncooperative with the Department.

19. In the Tribunal’s letter sent to the applicant in accordance with the procedure set out in ss.359A and 359(2) of the Act on 20 June 2019, the Tribunal noted that in the applicant’s response to the Department’s NOICC, the applicant’s representative submitted:

    Mr. Chadalavada had undergone treatment between November 2016 to May 2017 for high blood pressure and depression whilst in India.

20. As noted above, this was inconsistent with the applicant’s movement records and so the Tribunal’s letter informed the applicant that the Tribunal could find that this indicates the applicant was prepared to tell the Department whatever the applicant felt would assist him to achieve the migration outcome he seeks rather than the truth given the information in the applicant’s movement records states he returned to Australia on 16 December 2016.

21. The Tribunal’s letter explained the consequence of the Tribunal making such a finding is that it would weigh in support of the cancellation of the applicant’s visa. The letter noted that this would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review.

22. As also noted above, the Tribunal has not accepted the applicant’s explanation provided in the submission of his representative on 15 July 2019 for the applicant making these claims. Even though these claims were made by the applicant’s representative at the time, they were supported by a medical certificate provided by the applicant. Given the applicant’s subsequent oral evidence to the Tribunal it is also apparent to the Tribunal that the submission made to the Department at that time was based on the applicant’s instructions to the representative.

23. The Tribunal finds that on the evidence before the Tribunal the applicant is prepared to mislead the Department to achieve the migration outcome he seeks.

24. The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration considerable weight.

    Whether there are persons in Australia whose visas would, or may, be cancelled under s140

25. The applicant’s evidence to the Tribunal is that no-one is dependent on his visa. The Tribunal finds that this consideration is neutral and neither weighs in support of or against the cancellation of the applicant’s visa.

    Whether there are mandatory legal consequences to a cancellation decision

26. The delegate found that the cancellation of the applicant’s visa would mean he would become an unlawful non-citizen liable to be detained under s.189 of the Act and removed from Australia under s.198 of the Act, which would then mean that s.48 of the Act would apply to the applicant with the effect that he will have limited options to apply for further visas while in Australia. The delegate also found the applicant will be subject to Public Interest Criterion 4013.

27. The Tribunal explained the delegate’s findings in this regard and invited the applicant to respond. The applicant told the Tribunal he understood the legal consequences for him if his visa is cancelled. The Tribunal finds that there will be mandatory legal consequences for the applicant if his visa is cancelled.

28. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.

    Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation

29. The applicant’s evidence to the Tribunal is that he does not have any children or any claim that Australia owes him protection obligations and he does not make any claim that the cancellation of his visa would breach any of Australia’s obligations under relevant international agreements.

30. The Tribunal finds that this consideration is neutral and neither weighs in support of or against the cancellation of the applicant’s visa.

    Any other relevant matter

31. The Tribunal asked the applicant whether he wished to raise any other matter with the Tribunal. The applicant told the Tribunal that the only way he can live his life successfully back in India is to get a Master’s degree from Australia, which will help in both his business and charitable foundation. The Tribunal has considered this submission in its reasons above.

    Conclusion

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

    DECISION

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

    Michael Ison
    Senior 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.