Dalbir Singh (Migration)

[2022] AATA 4764

Dalbir Singh (Migration) [2022] AATA 4764 (12 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dalbir Singh Dalbir Singh

REPRESENTATIVE:  Mr Harpal Bajwa (MARN: 0955800)

CASE NUMBER:  2202971

HOME AFFAIRS REFERENCE(S):          BCC2020/1456790

MEMBER:Christine Kannis

DATE:12 December 2022

PLACE OF DECISION:  Perth

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

Statement made on 12 December 2022 at 12:20pm

CATCHWORDS  
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – Provider Registration and International Students Management System (PRISMS) – consideration of discretion – purpose of visa – length of non-enrolment – circumstances giving rise to non-compliance – stress – education provider’s non-continuation of course – decision under review affirmed 

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

CASES 
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 24 February 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. 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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams Video on 22 November 2022 to give evidence and present arguments.  The Tribunal was assisted by an interpreter in the Punjabi and English languages.

5. The applicant was represented in relation to the review.

6. 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

7. 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 (Cth) (the Regulations). 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?

8. On 21 August 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

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

   ·be enrolled in a full-time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

10. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

11. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course.

12. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

13. The information from PRISMS shows that the applicant was not enrolled in a registered course of study from 8 September 2020 until 16 November 2021.

14. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 8 September 2020 to 16 November 2021 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

16. 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’, as set out below.

17. On 22 December 2021, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

18. On 25 December 2021, the applicant responded to the NOICC and advised that:

    I came to Australia in 2019 on tourist visa and applied for the student visa since the date of application, I studied in the field of my interest and in September 2020, our college, without any prior notice told us that they will not be continuing the course as they do not have the workshop to train the students and the course is no longer active. No prior notice or warning was provided by the college. They simply kicked all the students out and told us to re-enrol in any other course within the college. Keeping in mind my field of interest, I denied their offer to take admission into another course within the college and started looking for other colleges that provide automotive course and have their own work shop.

    It was the peak of COVID in Australia and everything was under the lockdown. I was very stressed and started regretting and blaming myself for denying the college’s offer to take the offer to take admission into another random course. During all this time, I was unable to get proper guidance from anyone. Many colleges told me that they are unable to enrol me midway of the course and cannot provide me with the placements as all the colleges are attending the online classes and cannot offer any workshop trainings to the students. This gave me lots of stress and don’t even recall few months of my life due to this stress. I didn’t even talk to my family and due distance within the communication, my family contacted my sister in South Australia and she contacted me and told me to come to South Australia and live with her.

    I got the financial and emotional support from her and she helped me to get over the

    trauma my college caused me. She helped me in contacting the college to get my transcript which to this date my college did not provide me with despite of paying the fee and submitting the competent assessments. My teachers were also not really happy with the college and always talk about how they treat the students. I also contacted the colleges in Adelaide which denied my request to provide me with the credits to the course that I completed before in my previous college so I took an advice from a migration agent who told me that I am in breach of my student visa condition and need to get admission into the course I am interested in and my visa can get cancelled. I told him that I always had an intention to study in Automotive course and explained the whole scenario and he told me that some colleges do this to their students but Australian government have another way to help the students to get most out of their studies and told me about the USI account. He helped me to get my transcript from the USI account and told me few colleges who can provide me with the credits to the course and also have good reputation.

    Later meeting him, I researched about the colleges and decided to go with Durban

    International college. Durban have good reputation in Adelaide. They provided me with credits and face to face classes that I was looking for. I am intended to finish my course sooner than intended to COE and start another one. I got my COE before the letter to intention to cancel the visa was sent to me which itself proves that I have a strong urge to study but the circumstances such as my college’ course depletion, my mental health and COVID 19 Pandemic lead me to this stage. I never had intention to get my COE cancelled. My COE was not cancelled due to attendance, non-fee payment or in-sufficient Course progress but due to my course provider incompetency to deliver the course to the students.

    I know I have breached my condition by not studying in the course for some time but as soon as I got aware of this, I got myself enrolled into the course and studying with
    satisfactory course progress. If my visa gets cancelled, I will face a huge financial loss as I have invested lots of my parent’s money and my time which I can never retrieve back. Also, my sister and her family in Australia who helped me and spend so much time, money and effort to recover me from this situation will be shattered as I will be going back in the worst situation. I hope you understand that the circumstances were very much beyond my control and the huge part was played by my previous college and I should be given a second chance to resolve my mistakes I have done in my past to brighten my future. I feel this would be a huge privilege to get an Australian qualification and to work as a motor mechanic with skills that’s been sharpen in Australian settings during my placements. I want to state that I have not breached the condition as I have valid COE.

19. At the time of responding to the NOICC, the applicant provided CoEs for a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology, all of which were created on 17 November 2021.

    Pre-hearing evidence

20. Prior to the hearing, the applicant provided the following documents:

    ·Letter dated 4 November 2022, from Durban International College advising that the applicant is currently enrolled in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology. The course dates are indicated to be from 22 August 2022 to 14 October 2024

    ·CoE for Certificate III in Light Vehicle Mechanical Technology created on 1 August 2022

    ·CoE for Certificate IV in Automotive Mechanical Diagnosis created on 1 August 2022

    ·CoE for a Diploma of Automotive Technology created on 1 August 2022

    ·Copies of passport pages of Malkit Singh and Ranjit Kaur and Dalbir Singh

    ·Site plan of garage building

    ·A Statement of Assets dated 9 November 2022 on a document with the letterhead Kulbhushan & Associates, which indicates that Mr Malkit Singh S/o Sh Harjit Singh Kaur w/o Mr Malkit Singh & Mr Dalbir Singh s/o Mr Malkit Singh are the owners of assets including but not limited to a house, a garage and funds in bank accounts.

    ·Statements of Income dated 9 November 2022 on a document with the letterhead Kulbhushan & Associates, which indicates that Mr Malkit Singh S/o Sh Harjit Singh Kaur w/o Mr Malkit Singh & Mr Dalbir Singh s/o Mr Malkit Singh have annual incomes as stated in the document.

    ·Documents evidencing funds held in bank accounts in the applicant’s parents’ names

    ·Pearson PTE Academic Score of applicant test date 4 November 2022

    ·Shri Sai Clinic & Laboratory document dated 12 January 2022, certifying that Mr S Malkit Singh has been suffering from hypertension and anxiety

21. Prior to the hearing, the applicant provided a written submission which included the following information:

    ·The past 2 years have been very turbulent for him and he has been struck with some serious misfortunes.

    ·He was enrolled at Australian Health and Management Institute in Sydney, studying Certificate III in Light Vehicle Mechanical Technology. The onset of the COVID-19 pandemic, pertaining containment measures including lockdowns, shutdowns and travel restrictions, spreading infection, exposed medical infrastructures were a huge nightmare.

    ·As an international student he faced severe stress, anxiety and trouble. He was on his own and away from his family and experienced loneliness. He was not able to concentrate fully on his studies and his academic progress suffered.

    ·Added to this, his education provider advised without notice that they will not be continuing the course because they did not have a workshop to train the students and the course was no longer active. The education provider advised students would need to re-enrol in another course within the college. It was a shock as he had been looking forward to the academic experience by gaining advanced automotive skills and professional expertise. He had dreams of a secure and lucrative professional future in India and was not ready to compromise his dreams and didn’t accept the offer of another course.

    ·He  started looking for other colleges/universities that provided automotive courses and had their own workshop. He did not want his credits of academic modules and units to go to waste. It was a stressful time as it was during the peak of COVID.

    ·He was unable to get proper guidance. His academic future was hanging in the balance as many educational institutes were not taking new intakes given the severity of the COVID outbreak. Many colleges/universities would not enrol him  midway through a course and all of the colleges were only providing online classes and could not offer any workshop training to the students.  

    ·He started to regret not taking up his previous education provider’s offer to commence a different course.

    ·It is a known fact that individuals rely heavily on the people closest to them for support in such crisis. Reliance on close family members did increase further during the COVID-19 pandemic, but his personal circumstances meant he had no hope left but to be in care of a family member. Therefore he left course-work in between and shifted to Adelaide to reside with his sister which provided emotional support. 

    ·He eventually enrolled with Durban International College and they provide credits for prior study and also face to face classes. He is currently enrolled in Certificate III in Light Vehicle Mechanical Technology. The successful completion of the course will lead to pathway for Certificate IV in Automotive Mechanical Diagnosis. Going forward with the Diploma of Automotive Technology, he feels very confident. The potential skills and knowledge will enable him to undertake leadership and management roles in the automotive industry. Information about the industry worldwide and in India was provided and India is expected to be the world's third-largest automotive market in terms of volume by 2026.

    ·His previous education provider had not even provided him with transcript at the time of the Notice of Intention of Cancellation of Visa and subsequent cancellation. This even at the time when he had already paid the fees and completed assessments. So clearly, his CoE was not cancelled due to non-attendance, non-payment of fees or insufficient course progress but because his education provider’s incompetency to deliver the course to students.

    ·He received his CoEs prior to being issued the NOICC which supports his genuine intentions to study. Not being able to continue with the courses would prove to be a catastrophe for him.

    ·The proposed study plan would make him highly eligible and competent for lucrative employment and business and opportunities in his home country after he completes studies in Australia. This also adds to incentive to return back to India.

    ·He belongs to a well-settled and deep rooted family in Punjab, India. As a son he has great obligations and responsibilities towards his parents in India.

    ·Apart from the long separation from his parents, he has learned a lot from this country which would be very helpful in the future. All the hard work he is willing to endure is to provide for them in their old age.

    Evidence at hearing

22. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:

    a.He was enrolled in a Certificate III in Light Vehicle Mechanical Technology and finished the course on 31 May 2020.

    b.He was enrolled in a Certificate IV in Automotive Mechanical Diagnosis, but this enrolment was cancelled on 4 June 2020 due to deferment/suspension : compassionate or compelling circumstances.

    c.He was enrolled in a Certificate IV in Automotive Mechanical Diagnosis, but this enrolment was cancelled on 27 August 2020 due to non-commencement of studies.

    d.He was enrolled in a Diploma of Automotive Technology, but this enrolment was cancelled on 8 September 2020 due to non-commencement of studies.

    e.He is enrolled in a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology, for which the CoEs were created on 17 November 2021.

23. The Tribunal explained to the applicant that this information was relevant because it indicates that from 8 September 2020 to 16 November 2021, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal also explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.

24. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. The applicant told the Tribunal that he agreed with the PRISMS records.

25. When asked the reasons for not maintaining enrolment during the period from 8 September 2020 to 16 November 2021, the applicant told the Tribunal that it was because of the stress he experienced due to his girlfriend in India marrying his friend. He said he visited India in 2019 and he thinks she married in or around August 2019. He said he experienced this stress from 2019 until 2021. He said this together with being new to Australia and having nobody to guide him resulted in him not maintaining enrolment. The Tribunal put to the applicant that he had not mentioned the stress from his girlfriend’s marriage in his response to the NOICC or in his pre-hearing written submission. In response, he said he did not previously have the opportunity to raise the matter.

1. The Tribunal pointed out that in his response to the NOICC and in his pre-hearing written submission, he said the reason for ceasing his studies was because without notice his education provider advised that they will not be continuing his course because they did not have a workshop to train the students and the course was no longer active. In response, he said at that time he was not in a clear state of mind and he was not able to obtain any guidance from anyone until he went to Adelaide in 2020 and stayed with his sister.

2. The Tribunal asked about the applicant about the education provider’s non-continuation of his course, as referred to in his response to the NOICC and in his pre-hearing written submission. He said when he was undertaking study in the Certificate III course he requested a deferment, which was granted. He said his education provider said that they would let him know when there was availability to enrol him again. The Tribunal pointed out that PRISMS showed he was granted a deferment on 4 June 2020, prior to not maintaining enrolment. The representative contended that the applicant was verbally granted a deferment in 2019 until June 2020 due to his depression and was again granted a deferment in June 2020 and was advised by the education provider that they would enrol him once again when they had a garage and could offer a workshop. This information is inconsistent with the information in the response to the NOICC and in his pre-hearing written submission which says he was advised by the education provider to enrol in another course.

3. The Tribunal put to the applicant that in the response to the NOICC and in his pre-hearing written submission, he said after his course provider no longer offered his course, many colleges or universities would not enrol him. In response, he said he did not personally make any enquires or look for courses at other colleges. He said when he went to Adelaide he asked his migration agent to find a course and this resulted in his enrolment at Durban International College in November 2021. Noting that the applicant said he relocated to Adelaide in 2020, the Tribunal asked him the reason it took 12 months  to enrol in another course. In response he said he was not sure of the reason it took 12 months.

4. The applicant told the Tribunal that the stress he experienced from 2019 to 2021 caused him to withdraw from not only study, but from work and friends. The Tribunal asked the applicant whether he sought professional assistance for the stress he contended he experienced from 2019 to 2021. He said he did not however the representative told the Tribunal that the applicant told him the reason he did not seek professional assistance was because of adverse consequences if his depression was recorded online. As noted, the applicant did not provide this information when asked about assistance sought.

5. The Tribunal notes that the Department’s Character and Cancellation Branch sent the applicant an email on 4 November 2021 requesting his current address, phone number and email address. He responded to the email on 4 November 2021.  The Tribunal noted that on 17 November 2021, the applicant obtained CoEs for a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Automotive Mechanical Diagnosis and a Diploma of Automotive Technology. The Tribunal asked the applicant whether he obtained the CoEs in response to the Department’s email. He said he asked a migration agent to find a course but could not recall when this request was made. As noted, he was in Adelaide for 12 months prior to obtaining these CoEs.

6. The Tribunal put to the applicant that he would have known that from 8 September 2020 to 16 November 2021 he was no longer enrolled in a course and was not abiding by the conditions of his visa. This non-enrolment period extended over a period of more than 14 months. In response he said he said he was not in a good mental state but conceded he was aware of his non-compliance.

7. The applicant told the Tribunal that he came to Australia to study in the Automotive industry. He said he plans to return to his home country and open his own garage. He told the Tribunal that his parents have sufficient funds to finance his garage and this is the reason he provided his parents’  financial documents. He said he will be able to earn a good living form his business. The Tribunal asked the applicant whether there was a compelling need to him to remain in Australia. In response he said he needs to gain knowledge from a course which provides a workshop.

8. When asked about any hardship that might be caused by cancellation of his visa, the applicant told the Tribunal that without his visa he cannot complete his study in Australia. He said without the visa he cannot visit his parents in India. He said he wants to visit them and he plans to become engaged in India and then return to Australia to complete his study.

9. The Tribunal asked the applicant the reason he provided medical evidence in relation to his father. He said he wants to return to live in India when he completes his study so he can take care of his parents including his father who suffers from hypertension and anxiety.

10. Noting that the applicant referred to the COVID-19 pandemic in his response to the NOICC and in his pre-hearing written submission, the Tribunal asked him whether he wished to provide any evidence about this at the hearing. In response, he said that during COVID-19 jobs were quiet and he was not able to support himself. He said this was the reason he relocated to Adelaide because his sister financially supported him.

11. The applicant told the Tribunal he wants to complete the Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis courses and then return to India. The representative told the Tribunal that despite his current enrolment, the applicant does not intend undertaking study in the Diploma of Automotive Technology course and will return to India after completing the Certificate III and IV course. The representative said the applicant is the only son of the family and his plan is to marry and open a business in India. He said the applicant is likely to complete his study in 13 to 14 months.

12. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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

13. The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a registered course of study between 8 September 2020 to 16 November 2021.

14. The Tribunal accepts that the applicant is currently enrolled in Certificate III and IV courses and a Diploma course however these enrolments were obtained after a 14 month period of non-enrolment.  The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted for a period of 14 months and was not fulfilling the purpose of his travel to and stay in Australia.

15. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response he said he needs to gain knowledge from a course which provides a workshop. The Tribunal does not consider this constitutes a compelling need.

16. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

17. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study between 8 September 2020 to 16 November 2021. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa. The applicant’s non-compliance for an extended period of 14 months weighs in favour of visa cancellation.

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

18. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing because he wishes to obtain a qualification for the purposes of opening his own business. The Tribunal gives this some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

19. The applicant’s visa was cancelled as a result of his failure to maintain enrolment for a period of 14 months. The applicant told the Tribunal that this failure was primarily due to stress arising from his girlfriend’s marriage to his friend. He said he experienced this stress from 2019 to 2021. This reason was not provided in his response to the NOCC and his pre-hearing written submission and the Tribunal does not accept his explanation for not doing so was because he had not been given the opportunity. His pre-hearing written submission in particular was lengthy and covered many issues. No evidence was provided to substantiate the applicant’s contention that his mental state was the reason for his non-enrolment.

20. The reason for his failure to maintain enrolment set out in his response to the NOCC and his pre-hearing written submission refers to the education provider advising without notice that they will not be continuing the course because they did not have a workshop to train the students and the course was no longer active. The response to the NOCC and his pre-hearing written submission refers the education provider advising students that they would need to re-enrol in another course within the college. The Tribunal put this information to the applicant however his response was that the education provider advised they would let him know when a workshop course became available. No evidence was provided to substantiate this claim which as noted, is inconsistent with his earlier written evidence and the Tribunal gives it this evidence minimal weight.

21. At the hearing the applicant did not contend that the COVID-19 pandemic caused or contributed to his non-enrolment.

22. Given the absence of evidence to substantiate the applicant’s claimed stress from 2019 to 2021 and the impact of the claimed stress as the reason for the breach of condition 8202 , the Tribunal does not accept that these claimed circumstances were beyond the applicant’s control. In addition, the applicant contended in his response to the NOCC and his pre-hearing written submission that the reason for non-enrolment was because his education provider could not offer a course with workshop and he did not want to enrol in another course. The Tribunal finds that his non-enrolment for this reason does not constitute  circumstances were beyond the applicant’s control.

23. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

24. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

25. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

26. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

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

27. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

28. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

29. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted during a 14-month period. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

30. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.