Do (Migration)

[2019] AATA 5238

Do (Migration) [2019] AATA 5238 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xuan Sang Do

CASE NUMBER:  1824342

HOME AFFAIRS REFERENCE(S):           BCC2018/1799545

MEMBER:Christine Kannis

DATE:20 September 2019

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 20 September 2019 at 3:15pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – not a genuine student – unsatisfactory course progress – extensive study gap – did not resume studies – visa scam – non-compliance with work limitation condition – mental health – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 119, 189, 359AA
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Visa Condition 8105

CASES

MIMA v Hou [2002] FCA 574

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant is not and is not likely to be a genuine student. The issue in this case is whether the 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 on 20 August 2019 to give evidence and present arguments. The Tribunal also received evidence from the applicant’s partner, Ms Thi Tho Nguyen. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. 

5. The applicant was represented in relation to the review by his registered migration agent.

6. The Tribunal advised the applicant that it had a copy of his Provider Registration and International Student Management System (PRISMS) records. The Tribunal advised the applicant, following the procedure of s.359AA of the Act, that subject to his comment or response, this information would be the reason or part of the reason for the decision under review being affirmed. The Tribunal advised that this information was relevant because it comprised or added to evidence that he was not a genuine student. The Tribunal advised the applicant that at any time during the hearing he could seek an adjournment and consult with his representative before responding to any of the information or questions based on the information. He did not seek an adjournment at any time.

7. 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

8. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevant to this case, these include the ground set out in s.116(1)(fa). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

11. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. There is nothing before the Tribunal to indicate that r.2.43(1C) or (1D) apply in this case.

12. On 6 April 2016 the applicant was granted a Subclass 572 visa to study a packaged course leading to an Advanced Diploma of Leadership and Management with West Australian Institute of Further Studies (WAIFS).

13. PRISMS shows the applicant has been enrolled in Bachelor, Advanced Diploma, Diploma and Certificate courses and a General English course. He has only successfully finished the General English course in 2016.

14. The delegate set out the applicant’s study history and PRISMS information which included that he had not successfully completed a course in Australia, that he had ceased study in the Certificate II in Spoken and Written English course on 13 March 2017 and that he had been issued with a Notice of Intention to Report for this course and he had chosen not to appeal within the 20 working days of receiving the notice.    

15. The Tribunal put his study history and PRISMS information as set out in the delegate’s decision to the applicant. He did not dispute the information and did not dispute that he has not successfully completed any course of study.

16. On 25 July 2018 the Department of Immigration and Border Protection (the Department) issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) on the basis that he is not and is not likely to be a genuine student. The NOICC set out the PRISMS information and the following information:

    ·Since the grant of the subclass 572 visa on 6 April 2016 he has only studied English courses and has not successfully completed a course. The education provider cancelled all the CoEs in the approved package of courses for the subclass 572 visa and based on PRISMS; Student was unable to proceed to CIII in English as he did not complete all modules for CII English.

    ·He has an extensive non-study gap of 1 year and 20 days (from ceasing study in the Certificate II in Spoken and Written English on 13 March 2017 and beginning a General English course on 2 April 2018).

    ·He chose to remain in Australia during the 1 year and 20 days period of not studying.

    ·He is currently enrolled in a course of study at the English Language Intensive Courses for Overseas Students (ELICOS) level and not the Vocational Education and Training level required for Subclass 572 purposes. He currently holds a Subclass 572 visa and there is no evidence to suggest he has obtained an academic qualification since the grant of the visa.

    Response to NOICC

17. On 8 August 2018 the applicant responded to the NOICC and provided the following information in a Statutory Declaration:

    ·He arrived in Australia in 2015 on a Subclass 573 visa with the intention of studying English, a Diploma of Commerce and a Bachelor of Business in Economics. He completed his first course in English however his attendance records were unsatisfactory. He found the English level required for a Higher Education course beyond his ability. In addition his interest in a career had changed from Business management to something more technical and suitable to his capacity. Therefore he decided to change from Higher Education Sector courses to Vocational Education and Training courses.

    ·He was granted a Subclass 572 visa to study a packaged course including English, Dental Technology and Leadership and Management Skills. From 7 March 2016 to 5 September 2016 he studied. He could not complete the English modules as he struggled with English. He became depressed with the challenges in English and because he could not proceed to the main course. He continued until 13 March 2017.

    ·He would have continued with the courses if he had not been cheated by [Ms A] and her [partner]. Around January 2017 the couple offered him a part-time [job] at their [shop] and said they would train him. He agreed and started to work for them.

    ·In February 2017 the couple proposed to sponsor him to work in their shop. They guaranteed that he would be able to obtain a visa with a pathway to permanent residency by working at their shop. He was asked to pay a fee of $60,000 for the employer sponsorship. He trusted them and did not think it would be a scam. He agreed to let them do the paperwork.

    ·In early March 2017 [Ms A] told him that he would not have to continue studying as she had applied for a visa for him as an employee in her [shop] and he had to work full-time to satisfy the requirement of working experience. Following this advice he stopped going to school on 13 March 2017. During this time [Ms A] asked him to pay $20,000.

    ·Two weeks later the couple asked him to pay another $20,000 so they could push the visa processing time and he could have permanent residency within a year. Up to that time he had paid them $40,000. He kept working diligently at their shop.

    ·On 4 November 2017 the couple opened a second shop in [Location 1] and asked him to work there as a supervisor.

    ·On 1 March 2018 [Ms A] informed him that his working visa was cancelled because he did not update his new address with the Department of Home Affairs. He asked about the money he had paid but [Ms A] said they were not responsible for the cancellation and the money was not refundable. He asked for evidence of the visa cancellation and they avoided him. He did some checking and found out he had been cheated and they had not applied for a working visa for him but had applied for a protection visa and a bridging visa.

    ·He immediately returned to WAIFS to ask if he could continue with his studies but was told there was no English course starting at that time. The school advised him to do a general English course at another school while he waited for a new course at WAIFS.

    ·He understands it was wrong to not comply with the conditions of his student visa and fail to make satisfactory academic progress.

    ·His parents sent him to Australia so he could obtain a good degree and return to Vietnam and obtain good employment.

18. On 8 August 2018 the applicant’s former representative provided the following information in response to the NOICC:

    ·The applicant could not finish all the modules for the Certificate II in Spoken and Written English and he had to repeat the course until 13 March 2017. As he did not meet the English requirement to commence the Certificate III in Spoken and Written English as a prerequisite for the Certificate III in Dental Assisting he wished to study, the CoEs for this course and the other packaged courses were cancelled.

    ·Before deciding to cease the course he was offered a part-time job by [Ms A] at a [shop] in [Location 2]. [Ms A] then offered to be his sponsor on a working visa application. [Ms A] promised to do all the paperwork and apply for the visa around February to March 2017. Due to his limited knowledge about the Australian visa system the applicant believed [Ms A] had made the application and he could leave school to work full-time for his sponsor.

    ·Therefore in March 2017 when [Ms A] told him that he did not need to go to school and that he would have to work full-time to qualify for a working visa, he decided to stop studying at WAIFS. He was asked to pay $60,000 by [Ms A] to apply for the working visa with pathway to permanency. He has paid [Ms A] $40,000.

    ·The applicant was not aware that the employer had not lodged a working visa application for him but had lodged a protection visa, which he found out in March 2018.

    ·As soon as he realised the scam he immediately went to WAIFS to see if he could resume his study.

19. According to the delegate, based on his study record the applicant is not a genuine student given his lack of study and academic progression over a substantial period of time whilst remaining in Australia on a visa granted for the primary intention to study.

    Evidence provided at hearing

20. The Tribunal put to the applicant that there had been a gap in his study of 1 year 20 days and that he had stopped studying on 13 March 2017. He did not dispute that he had ceased study for that period.

21. The Tribunal asked the applicant the reason he stopped studying on 13 March 2017. In response he said [Ms A] had told him that he could work for her and her partner, that they would sponsor him and apply for a visa for him and he did not need to go to school. He said he trusted the two women because they lived in Australia, they were Australian citizens and they had a successful business. He said they were sympathetic to his emotional distress caused by him feeling not being good enough to pass his English course. The Tribunal put to the applicant that he made the decision to stop studying and to work for the couple because they had promised to apply for a visa for him on the basis that he worked for them. The applicant did not respond or comment when this was put to him and only repeated that he had trusted the two women.

22. The applicant told the Tribunal that he worked on a part-time basis for the couple from January 2017 to July 2017. He said he stopped working for them in July 2017. He said he worked in their [Location 2 shop]. He said on 29 August 2017 they asked him to pay $20,000 to them so they could apply for his visa. He said a number of times that he did not know the type of visa for which they said they would apply. The Tribunal noted the inconsistency in his evidence at hearing and in the Statutory Declaration provided when responding to the NOICC with respect to full-time work from March 2017.

23. The Tribunal put to the applicant that in the Statutory Declaration dated 8 August 2018 he stated in early March 2017 [Ms A] told him he had to work full-time to satisfy the requirement of working experience and at that hearing he said he only worked on part-time basis. In response the applicant said he was upset when his visa was cancelled and he was not clear about the work he had undertaken when he made the Statutory Declaration. He said the evidence he provided during the hearing was correct. The Tribunal pointed out that the evidence provided in the Statutory Declaration was closer in time to the events described and that his evidence at hearing was provided more than 12 months after the Statutory Declaration was made.

24. The Tribunal asked the applicant about his decision to return to study in April 2018. He said it followed a phone call from the [shop] owner advising him that his temporary visa had been cancelled.  

25. The Tribunal asked the applicant whether he had worked in the couple’s [Location 1] shop. He said he worked there from 3 November 2017 for a period of four months. The Tribunal asked the applicant whether he worked in the capacity of supervisor to which he said he worked 20 hours per week as a supervisor and as a staff member. 

26. The Tribunal does not accept the applicant’s evidence that he worked part-time for the couple at all times. The Tribunal prefers the evidence the applicant provided in the Statutory Declaration dated 8 August 2018 because not only was the document made closer to the time of the events described, but also because the applicant’s claim that he did not work full-time was made after the delegate’s decision in which his non-compliance with Condition 8105 (Work Limitation) was first raised. In addition the Tribunal did not find the applicant to be a credible witness in a general sense. He was evasive when answering questions despite the questions being put to him a number of times in a simple and straightforward manner or questions being put to him that required a yes or no answer.  The applicant’s representative contended there was a problem with the interpreter. The Tribunal pointed out that at the commencement of the hearing it had informed the applicant that if he had any difficulty with the interpreter he should make it known. The applicant did not do so at any time during the hearing.

27. Ms Nguyen told the Tribunal she was living at [Ms A] and her partner’s house when the applicant moved there in 2016. She said the couple were good to both of them in the early days and she witnessed them promise to apply for a visa which would allow the applicant to live and work in Australia. She said he worked for them up to July 2017 when he gave them $20,000 cash. She said the couple asked him for more cash to make the visa process quicker and in August 2017 he gave them a second $20,000 cash payment. Ms Nguyen said the applicant had trusted the couple until April 2018 when he found out they had cheated him. 

    Post hearing evidence and submission

28. Following the hearing the Tribunal provided the applicant’s representative with an opportunity to provide details of any substantive incorrect interpretation.

29. In addition the Tribunal provided the applicant with a further opportunity to explain the inconsistency in his evidence regarding the nature of his employment. In particular the Tribunal noted that at hearing he said he worked part-time in the [shop] at all times however when responding to the NOICC he provided a written submission via his former representative and a Statutory Declaration both of which indicated he worked full-time from March 2017. The Tribunal provided this further opportunity to the applicant to consider whether the substance of his responses as interpreted during the hearing was correct.  For the same reason the Tribunal also invited the applicant’s representative to provide the following information:

    ·The reason the applicant stopped study in March 2017. The information provided in response to the NOICC referred to the applicant ceasing study to work for the couple because they had promised to apply for a visa for him on the basis that he worked for them.

    ·The reason the applicant chose to remain in Australia during the 1 year and 20 days period of not studying.

    ·The reason the applicant re-engaged in study in April 2018.

30. On 17 September 2018 the applicant’s representative provided a written submission, a Statutory Declaration sworn by the applicant on 9 September 2019 and a psychological report dated 8 September 2019 from Dr Sandra Nguyen.

31. The written submission set out the details of the claimed incorrect interpretation as follows:

    I am instructed to submit the hearing was misled by incorrect interpretation. In particular, the Member was asking “what were the reasons Mr Do did not study from March 2017” but the interpreter interpreted it to be March 2018 and it was repeatedly about 4 times. It created difficulties to Member to even state “I have asked you the question 4 times but you did not answer my question”. This is just one of the example of errors in interpretation.

    The most important thing is that the interpretation had derailed the hearing and put Mr Do at risk of losing the Member’s trust in his credibility.

32. The Tribunal noted that following the hearing the applicant was given an opportunity to provide the reasons he did not study from 17 March 2017 and as such the claimed incorrect interpretation will not impact on its decision. Despite the applicant’s representative stating that the incorrect interpretation example was just one example, no further examples were provided.

1. The written submission stated the reason the applicant stopped study in March 2017 was because the scammers promised him a permanent residence visa and instructed him not to study to comply with his work visa conditions. It was submitted the reason the applicant remained in Australia for 1 year and 20 days without studying was because he was manipulated by the scammers. It was submitted that some reasons that led to the applicant’s non-enrolment were within his control and some were beyond his control.

2. It was submitted that the applicant misunderstood the meaning of full-time employment and thought it meant he worked exclusively in a shop and was not based on the hours worked. It was claimed he sat home for more hours than he worked.

3. The written submission stated that the applicant collapsed physically and mentally after the hearing. No medical evidence was provided to substantiate this claim.

4. was submitted that the applicant is now interested in Construction study.

5. In the Statutory Declaration the applicant said the information he provided in the Statutory Declaration dated 8 August 2018 was incorrect and sought to attribute some of the blame to his previous migration agent.  He said he had not understood the meaning of full-time employment and believed it meant he was committed to work at the one job only. He said in reality he was on call, that he sat home a lot and he did not exceed the 20 hours per week he was permitted to work. He said his understanding of Australian law is minimal and his English language skills are poor and these also contributed to his misunderstanding. The information provided was otherwise a re-statement of his evidence at hearing that he was the victim of a scam. 

6. The psychological report was prepared following an interview by teleconference. Dr Nguyen said the applicant suffers from Major Depressive Disorder with Anxious Distress due to the ordeal of being the victim of a scam, the possibility of being separated from his partner if he has to depart Australia and because his parents will be disappointed if he returns to Vietnam without a qualification. Dr Nguyen said if he is sent back to Vietnam his depression and anxiety will escalate and it will be important for him to receive treatment for his mental illness. She said he reported previous moments of suicide ideation.

7. The purpose of the applicant’s visa was to allow him to study. For more than 12 months the applicant did not study. The Tribunal finds he ceased study when he was offered an alternative visa which would allow him to remain permanently in Australia. The Tribunal finds he agreed to work for an employer to obtain a permanent visa. The Tribunal also finds the information in PRISMS with respect to the applicant’s unsatisfactory course progress and the lack of any attempt to re-engage in study until he was made aware of the scam is strong evidence that he is not a genuine student.

8. Having regard to the applicant’s study history, his poor academic progress, the substantial study gap period and his willingness to cease study to work to obtain a visa, the Tribunal finds that the applicant is not a genuine student. The Tribunal finds that the ground for cancellation in s.116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

   Consideration of discretion

9. 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 to and stay in Australia

10. The applicant told the Tribunal his purpose in coming to Australia was to study and learn and to take this knowledge back to his country. He was granted the Subclass 572 visa in 2016 and on 13 March 2017 he ceased study to work in a [shop]. 

11. The Tribunal noted that the applicant has not successfully completed any course. The Tribunal has found that the applicant’s last day of study was 13 March 2017 and that more than 12 months elapsed from that date until he sought to re-engage in study. The Tribunal noted that he was issued with a Notice of Intention to Report and that he chose not to appeal.

12. The applicant’s non-engagement in study for an extended period weighs in favour of visa cancellation.

    Whether the visa holder has a compelling need to travel to or remain in Australia

13. The Tribunal questioned the applicant as to whether there were any compelling reasons for him to remain in Australia. He said there were none.

14. There is nothing before the Tribunal to indicate that the applicant has a compelling need to travel or remain in Australia. The Tribunal is not satisfied that the applicant has a compelling need to travel to or remain in Australia which would mean his visa should not be cancelled.

    The extent of compliance with the visa conditions

15. The applicant was granted a student visa in order to study in Australia. As such his intention must be to study, maintain enrolment, attendance and course progress, in a registered course. PRISMS indicates the applicant’s course progress was unsatisfactory and his evidence was that he stopped going to school from 13 March 2017. The applicant had a significant period of non-compliance with the enrolment conditions on his visa and as such the Tribunal gives this no weight in not cancelling the visa.

16. In the Statutory Declaration dated 8 August 2018 the applicant admitted to working full-time following the advice of [Ms A]. His Subclass 572 visa was subject to condition 8105 which limited his work to 40 hours per fortnight. The written submission and Statutory Declaration received following the hearing claim the applicant misunderstood the meaning of full-time employment. For the reasons previously discussed the Tribunal does not accept that the applicant limited his work to 20 hours per week.

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

17. Regarding the potential hardship which may result from cancellation of the visa, the applicant said his family expect him to complete his study in Australia and return home with a qualification and a certificate. He said they will be disappointed if he returns without making an achievement.

18. The psychological report stated that the applicant suffers from Major Depressive Disorder with Anxious Distress. The Tribunal noted that the diagnosis was based on one teleconference interview, the applicant’s self-reported symptoms and two tests (K10 and DASS21). The tests indicate that the applicant is suffering from stress and anxiety. Dr Nguyen attributed his anxiety in part to the possible separation from his partner if he is required to depart Australia and the disappointment of his parents. Given the limited information on which the psychological report was based and some of the reasons for the applicant’s stress and anxiety, the Tribunal attaches limited weight to this evidence. 

19. The Tribunal acknowledges that the cancellation of the applicant’s visa will be disappointing to the applicant and his family.  However, the Tribunal is satisfied that there is not a degree of hardship to mean that the visa should not be cancelled.

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

20. The applicant’s visa was cancelled because he is not and is not likely to be a genuine student. This was based on his failure to obtain an academic qualification since the grant of the Subclass 572 visa, his lack of academic progress and his extensive gap in study.

21. The applicant was granted the Subclass 572 visa to start packaged courses which included English courses. After struggling with his Certificate II in Spoken and Written English he was offered employment by a couple who offered to sponsor him on a working visa.

22. The applicant made the decision to cease study and commence work because he wanted an alternative visa pathway to remain in Australia. The fact that the couple cheated him does not negate his independent decision to cease study and engage in employment for a migration outcome.

23. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

24. Nothing adverse is known about the applicant’s past and present conduct towards the Department.  The Tribunal gives this some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

25. The Tribunal is not aware that there are any persons in Australia whose visas would be impacted if the applicant’s visa is cancelled.

26. There is no evidence that there would be consequential cancellations in this case.

    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

27. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice pertaining to his immigration status. 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 he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. However, the applicant’s approach to his studies has demonstrated a disregard for the visa and its requirements during his time in Australia. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

    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

28. 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.

29. There is no evidence before the Tribunal that any international obligations would be breached as a result of the visa cancellation.

    Any other relevant matters

30. The applicant’s representative submitted that if the couple had not offered to sponsor the applicant on a working visa, he would not have ceased study. Whether or not that is the case, the applicant did cease study to work in the couple’s [shops].

31. The applicant’s representative submitted that the applicant’s good intentions were demonstrated by the fact that as soon as he discovered the scam he attempted to return to study.

32. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

33. The Tribunal has considered the applicant’s circumstances. The Tribunal has found that the applicant is not a genuine student. The Tribunal has formed the view that the applicant has not been fulfilling the purpose of his travel to and stay in Australia because he has not successfully completed any study in Australia and because of his poor academic progress when he was enrolled in study.  The Tribunal has formed the view that the grounds for cancellation did not arise in circumstances beyond the applicant’s control. The Tribunal is prepared to accept that cancellation would cause some hardship to the applicant. The cancellation would not result in breach of Australia’s international obligations and would not affect any other person’s visa.

34. The Tribunal has carefully considered the applicant’s circumstances independently and cumulatively. 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

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Christine Kannis
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.