Doal (Migration)

[2019] AATA 2398

Doal (Migration) [2019] AATA 2398 (16 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaspinder Singh Doal

CASE NUMBER:  1620971

HOME AFFAIRS REFERENCE(S):           BCC2016/3054815

MEMBER:Justin Owen

DATE:16 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 16 April 2019 at 1:17pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (class TU) visa – Subclass 573 (Higher Education Sector) – breach of condition – no longer enrolled in a Bachelor or Master degree course – attempts to enrol with another education provider – not received formal notification allowing applicant to withdraw from  principal course of study – failed to maintain enrolment in course of study – applicant did not obtain new CoE at higher education level – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 360, 362, 379
Migration Regulations 1994, Schedule 2, r 1.40A, cls 573.111, 573.112, 573.223(1A), 573.231

CASES
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a national of India born 12 November 1994.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 4 April 2014 and was subject to condition 8516.  On 28 October 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8516 of his visa, as he was no longer enrolled in a Bachelor or Master degree course of a type specified for subclass 573 visas by the Minister in an instrument made under regulation 1.40A.  As he had not continued to be a person that would satisfy either subclauses 573.231 or 573.223(1A), the delegate considered that the applicant had not complied with condition 8516 of his visa.    The applicant responded to the NOICC on 2 December 2016.  On 5 December 2016 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8516 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant had not complied with the requirements of condition 8516 of the 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.

4. 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

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8516 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

6. On 9 December 2016 the Tribunal wrote to the applicant and advised it had received an application for a review of the delegate’s decision to cancel his Subclass 573 Higher Education Sector visa.

7. On 13 February 2019 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case on 1 March 2019.

8. On 21 February 2019 the applicant accepted the Tribunal’s invitation to hearing and notified the Tribunal he was now representing himself in the review.  The applicant included a completed Form 956 and a Change of Contact Details form ending the appointment of his representative (T1, Folio.34-36). 

9. On 21 February 2019 the applicant made written submissions to the Tribunal and included a range of supporting evidence (T1, Folio.40-116).  The Tribunal also noted from the applicant’s correspondence of 21 February 2019 he stated ’if I get a date extension, it will be of great help’ (T1, Folio.116). 

10. The Tribunal noted that the applicant was now residing in Melbourne whilst its scheduled hearing for 1 March 2019 was to be held in Sydney.  On 25 February 2019 the Tribunal contacted the applicant and stated that rather than put him to the expense of travelling to Sydney to attend the hearing in person, the Tribunal was prepared to postpone the hearing until the Member was in Melbourne if the applicant so wished.  The applicant agreed with the Tribunal’s offer to postpone the hearing and for it to be rescheduled in Melbourne in about a month’s time. 

11. On 25 February 2019 the Tribunal told the applicant over the telephone that the Tribunal would be sending a new hearing invitation in coming days.  The applicant was told that the new hearing invitation would have the Melbourne Registry address to attend the hearing.  Before ending the telephone call, the Tribunal reconfirmed the applicant’s email address to ensure it was accurate.  There were no further questions from the applicant. 

12. On 15 March 2019 the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues in his case on 10 April 2019.

13. The Tribunal sent a courtesy reminder of the hearing via SMS to the mobile telephone number the applicant provided for the applicant on 3 April 2019 and 9 April 2019.

14. No response was received from the applicant to the Tribunal’s invitation.   The invitation stated that if the applicant did not attend the scheduled hearing then the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. 

15. The applicant did not appear before the Tribunal on the day at the scheduled time and place. The applicant has not provided any further evidence, submissions or information to the Tribunal since his submissions on 21 February 2019. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing under s.360 of the Migration Act to appear before the Tribunal on 10 April 2019. The Tribunal is satisfied that the notice of invitation to appear met the requirements of s.360A, it was properly transmitted to the applicant’s address for service in accordance with s.379A(5)(b) and the applicant is taken to have received it in accordance with s.379C(5) and the invitation has not been returned to sender. .

16. The review applicant did not appear before the Tribunal on the day and at the scheduled time and place. No request for an adjournment to the hearing was received.  Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with the Act, the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing.  No satisfactory reason for the non-appearance has been given.

17. In these circumstances, and pursuant to s.362B(1A)(a) of the Migration Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. 

    Does the ground for cancellation exist?

18. 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. Relevantly, to this case, these include the ground set out in s.116(1). 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.

19. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8516 is attached to the applicant’s visa. This condition requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa. In respect of the criterion requiring the applicant to be enrolled, this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

20. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant is an eligible higher degree student who satisfies cl.573.223(1A), or, if not, is enrolled in, or the subject of a current offer of enrolment in a principal course of a kind specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application: cl.573.231. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

21. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a Bachelor’s degree, Master’s degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying eligible education providers for this visa was IMMI 14/007.

22. In the present case, the applicant’s visa was cancelled on the basis the applicant did not continue to be a person who would satisfy either subclauses 573.231 or 573.223(1A).  As such it appeared that the applicant no longer satisfied the primary criteria for the grant of the visa and did not comply with condition 8516.  

23. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 5 December 2016. The decision record states that information before the Department from the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had not been enrolled in a course at the Higher Education Sector level from 6 November 2014 to 17 November 2016. 

24. The Tribunal notes that the applicant submitted to it much of the same documentation he provided in 2016 to the delegate in his NOICC response.  In his correspondence to the Tribunal (T1, Folio.116) he states that he applied for release from UTS in 2014 by obtaining offers from other universities.  He claimed UTS gave him assurance that they would release him and he obtained ‘copies of clearance documents’.  He states that they later forgot, made an error and ‘ruined my life.’ 

25. The Tribunal accepts that the applicant made attempts to gain a release from his studies at UTS in order to enrol with another education provider, first writing to UTS in October 2014 and became frustrated in getting a formal response.  There is no evidence however that UTS ever formally agreed to release the applicant.  The applicant’s withdrawal application was rejected by UTS on 22 January 2015 (T1, Folio.55).  The Tribunal accepts that the applicant made significant arrangements to transfer his studies to another course and obtained offers from Federation University.  The fact remains the applicant had not received formal notification from UTS allowing him to withdraw from his principal course of study.  The applicant failed to maintain his enrolment at UTS.  The Tribunal notes the applicant commenced the Information Technology part of his course of study in July 2014 and by October 2014 the applicant wished to depart the University and the course of study due to his claimed home situation and the difficulties he had in studying IT. His enrolment was cancelled by UTS.  The applicant provided the Tribunal with correspondence he received from UTS stating that he was reported to Immigration for failing to enrol in Semester 3 2014 (T1, Folio.54).  The Tribunal does not accept that UTS formally agreed to release the applicant from his course of study.  The Tribunal notes that on the evidence the applicant failed to enrol in his course of study at UTS for Semester 3 and failed to remain enrolled in his course of study.  Requesting a withdrawal from an education provider in the hope of transferring to another provider did not obviate the requirement that the applicant to maintain enrolment with his existing education provider – at the time UTS.  The Tribunal notes that the applicant did not obtain a new CoE at the higher education level until, according to the decision record, 17 November 2016.  The Tribunal notes that this was about three weeks after he received from the Department the Notice of intention to cancel his Student Visa.          

26. On the evidence before the Tribunal, the applicant was not enrolled in a Bachelor’s degree or Masters degree course which is a principal course of a type specified for subclass 573 visas by the Minister in an instrument made under Reg 1.40A between 6 November 2014 and 17 November 2016, a period in excess of two years. Accordingly, the applicant has not complied with condition 8516.

27. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1) 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

28. Having found that the applicant has not complied with a condition of the visa and the ground for cancellation exists, the Tribunal must consider whether the visa should be cancelled. 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’.

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

30. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The primary decision record indicates that PRISMS evidence available to the Department indicated the applicant ceased to be enrolled in a principal course of study at the higher education level between 6 November 2014 and 17 November 2016.  The Tribunal considers the breach of condition 8516 to be significant and that the applicant had not been fulfilling the purpose of his travel to and stay in Australia as a holder of a student visa. 

31. The Tribunal notes the applicant’s claim in his written correspondence of 21 February 2019 that he was a good student and only wanted to study at universities rather than other education providers.   The Tribunal accepts that the applicant made significant attempts in 2014 and early 2015 to transfer his enrolment to another higher education provider.  The Tribunal also notes from the applicant’s submissions he provided to it that the applicant enrolled at the Hibernia Institute in a Certificate IV of Business leading to Diploma then Advanced Diploma of Management in April 2015.  (T1, Folio.87).  There is no evidence before the Tribunal that the applicant ever successfully completed either the Diploma or the Advanced Diploma of Management.  The Tribunal notes from the applicant’s submissions that he also enrolled in a Diploma of Business in 2016 at Group Colleges of Australia that was to lead into a Bachelor of Business (T1, Folio.86).  The Tribunal gives some positive weight to the applicant for enrolling in courses of study but notes that none of these (the Bachelor course notwithstanding) were principal courses of a kind specified for his 573 Higher Education visa.  The applicant Tribunal acknowledges that the applicant did enrol in Higher Education courses after his enrolment at UTS was cancelled – a Bachelor of Business but the Tribunal notes this only occurred after two years of non-enrolment and after receiving the NOICC from the Department. 

32. The Tribunal notes in his NOICC response he provided to the Tribunal that he states he wants to study not only just to justify his visa requirements but primarily to secure a good career and gain skills which will help his family get back on track.  The Tribunal appreciates the applicant has enrolled in a number of courses but notes he has not on the evidence before it successfully completed any Higher Education courses in the five years since the grant of his visa.    

33. On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

34. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.  The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled at a Higher Education Sector level for a period of over two years to be substantial.  The Tribunal considers the applicant’s non-compliance with his visa conditions, notwithstanding his enrolment and study in a number of non-higher education courses to be considerable.  As previously discussed the Tribunal accepts that the applicant desired to withdraw from his higher education studies at UTS and enrol with another university provider in a higher education course of study.  The applicant however never received agreement from his education provider to do this, precipitating a situation where the applicant was not enrolled in a principal course of study for a period of over two years.  The Tribunal furthermore notes that this enrolment only occurred a few weeks after the applicant received his NOICC from the Department and was to enrol in a Bachelor course that commenced on 28 August 2017, just two days before his Higher Education visa was due to expire.  The Tribunal considers the applicant’s non-compliance with condition 8516 has been substantial.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.

35. The Tribunal has considered the degree of hardship that may be caused to the applicant or his family members should his student visa be cancelled.  The Tribunal notes that in his correspondence of 21 February 2019 the applicant states ‘as a result of this visa cancellation, my parents and whole family is facing hardships’ (T1, Folio.116). The Tribunal has taken into account his claim of February 2019 concerning hardships to his family and parents but in the absence of further corroborative evidence gives the claim little weight.

36. In relation to hardship caused to his family, the Tribunal notes the evidence the applicant provided concerning the health of his mother and father (T1, Folio. 70-81), mainly from 2015 though with some documentation going back to 2007.  The Tribunal notes his claims that his father had throat surgery, the family business went into financial difficulties and the failure of his sister’s planned marriage.  The applicant in his NOICC however stated that matters subsequently improved with his parents’ health stable, his sister became married and the family became financially better off. 

37. The applicant wrote in his NOICC that cancellation of his visa would bring shame and hardship to his family and will adversely affect the family reputation.  He writes as the only son he has lots of responsibilities on his shoulders. The Tribunal accepts that his parents and family may feel some disappointment at the cancellation of the applicant’s Student visa.   The Tribunal also notes there is no evidence before the Tribunal or claim made that the applicant has any immediate family members in Australia so any cancellation and his departure will not create hardship for them.   The Tribunal weights this factor pertaining to hardship to the applicant’s family in favour of cancelling the visa. 

38. In relation to hardship to the applicant, the Tribunal notes the applicant has previously claimed he wants to pursue a career in management and business and when he returns to India he can run his own business (T1, Folio.40).  The Tribunal considers the applicant retains the ability to both study such courses and manage his own business even should his visa be cancelled.

1. The applicant has made a range of statements that he desires to study with university providers.  Whilst cancellation of his visa may preclude him from doing so in Australia, there is no reason before the Tribunal why he would not be able to pursue this goal either in India or by making an application to study elsewhere offshore. 

2. The applicant writes that his father is a doctor and a very respected man in society.  He writes that his father sent him to Australia to study so he can return, as the only son, as an educated man who is independently able to take up the challenges of life.  The Tribunal accepts that the applicant is concerned he is not meeting these expectations if he has to return offshore after his visa is cancelled and this may be construed as a form of hardship.  The Tribunal however considers that the applicant is a young man and maintains the ability to meet these expectations of his father and his family by studying either in India or offshore in the future.  

3. The applicant also claimed in his NOICC he provided to the Tribunal that the cancellation of his visa would ‘put me back to zero.’   He points out that he has enrolled in a course package leading to a degree program and his family life and study were getting back on track.  There is no evidence however before the Tribunal that the applicant has successfully proceeded with studies at the Higher Education level since his NOICC and his enrolment in a Bachelor of Business course that was due to commence in August 2017.  The Tribunal on the evidence before it is not satisfied the applicant will face any significant degree of hardship should his visa be cancelled.  On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.                

4. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a temporary visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. On the evidence before it concerning the mandatory legal consequences of cancellation, the Tribunal weighs this factor neither in favour nor against cancelling the visa.

5. The Tribunal has considered the circumstances in which the ground for cancellation arose.  The Tribunal has closely reviewed the correspondence between the applicant and UTS in the period between October 2014 and January 2015.  The Tribunal accepts that the applicant made attempts to gain a release from his studies at UTS in order to enrol with another education provider.  The Tribunal accepts that the applicant became frustrated with receiving a formal response from UTS to his request.  The Tribunal furthermore accepts that the applicant made a significant effort to obtain a new offer to embark upon study at the Higher Education level at another university.  The Tribunal notes however that there is no evidence however that UTS ever formally agreed to release the applicant.  The applicant was required to maintain his obligations to UTS and continue to meet the requirements of his visa until he was granted a release.  He continued to be required to fulfil the conditions of his 573 Higher Education student visa, including Condition 8516.  The applicant unilaterally decided to not recommence his studies – presumably expecting the University to agree to his request - before receiving any formal acceptance of his request from the UTS administration.  The Tribunal notes that the applicant’s withdrawal application was rejected by UTS on 22 January 2015 (T1, Folio.55).  As has been discussed earlier in this decision, the Tribunal accepts that the applicant made significant arrangements to transfer his studies to another course and obtained offers from Federation University.  The fact remains the applicant had not received formal notification from UTS allowing him to withdraw from his principal course of study and subsequently failed to maintain his enrolment at UTS.  Even if he had not received agreement from UTS to his request, he was still required to continue to satisfy the primary criteria for the grant of his Higher Education Student visa. 

6. The Tribunal notes the applicant commenced the Information Technology part of his course of study in July 2014 and by October 2014 the applicant wished to depart the University and the course of study due to his claimed home situation and the difficulties he had in studying IT. His enrolment was cancelled by UTS.  The applicant provided the Tribunal with correspondence he received from UTS stating that he was reported to Immigration for failing to enrol in Semester 3 2014 (T1, Folio.54). 

7. The Tribunal does not accept that UTS formally agreed to release the applicant from his course of study.  The Tribunal notes that on the evidence the applicant failed to enrol in his course of study at UTS for Semester 3 and failed to remain enrolled in his course of study.  Requesting a withdrawal from an education provider in the hope of transferring to another provider did not alleviate the applicant of his obligation to maintain enrolment with his existing education provider – at the time UTS.  The Tribunal furthermore notes that the applicant ultimately did not obtain a new CoE at the higher education level until, according to the decision record, 17 November 2016 and just three weeks after he received from the Department the Notice of Intention to cancel his Student Visa. Over five years have now elapsed since the applicant was granted his Higher Education visa and, as he states in his correspondence of 21 February 2019 to the Tribunal, he has not ‘done any qualification to date.’ (T1, Folio.116).          

8. The Tribunal accepts that the applicant enrolled in a number of non-higher education courses between the cancellation of his UTS enrolment in October 2014 and enrolling in a Bachelor of Business two years later.          

9. The Tribunal notes that the ground for cancellation arose due to the fact the applicant ceased enrolment with a registered education provider and subsequently failed to rectify his enrolment status in an adequate time: in his situation over two years.    The Tribunal has taken into account his dispute with UTS and the attempts he made to transfer to another higher education provider and another course of study and given this some limited weight.  Given however the applicant was a direct party to his enrolment; the Tribunal is of the opinion that on the evidence he would have been aware that he had ceased enrolment with a registered education provider.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  The Tribunal is of the opinion that the applicant would have been well aware that his student visa contained condition 8516 which required him to continue to satisfy the primary criteria for the visa grant including that he remain enrolled at a Higher Education Sector level.  The Tribunal is of the firm view that the applicant would reasonably have been aware that his failure to remain enrolled with a eligible higher education provider for over two years would have an impact upon his eligibility to continue to hold his student visa: notwithstanding his dispute with the administration of UTS.   On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

10. The Tribunal has considered the applicant’s claims concerning the health of his parents (T1, Folio.88), his sister’s failed marriage and his own health from his period of non-enrolment at the higher education level The Tribunal accepts the challenges his family faced at that time may have caused some concern to the applicant.  The Tribunal has also considered the applicant’s own claims and his letter of 10 November 2016 from his GP Dr Jasvinder Kheray who writes that over a period of two years the applicant incurred debt and went into depression and panic disorder.  Dr Kheray wrote that ‘I understand he couldn’t attend college for same reasons’ (T1, Folio.69).  In the absence of any further corroborative medical or specialist evidence, the Tribunal gives the claim little weight.  The Tribunal is not satisfied that the these claimed circumstances led the applicant to cease or being unable to maintain his enrolment in a Higher education level principal course of study for over two years and his failure to maintain enrolment was due to circumstances outside of his own control. 

11. Given the applicant was a direct party to his enrolment; the Tribunal is of the opinion that it is his responsibility to be aware and comply with the conditions of his visa whilst studying and living in Australia.  This includes being aware of any conditions such as condition 8516 which required that the applicant continue to satisfy the primary criteria that permitted the grant of the visa including that he maintain enrolment at the Higher Education Sector level.  The Tribunal is not convinced on the evidence that the applicant was unaware of his non-compliance after ceasing his UTS studies.  The Tribunal furthermore notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.  The Tribunal acknowledges the applicant’s claims he was receiving advice from education consultants in relation to his enrolment who told him to stay enrolled and got him enrolled with private education providers.  The Tribunal acknowledges that the applicant did in fact enrol in a number of courses: albeit his enrolment was not in a principal course with an ‘eligible education provider’ as specified in IMMI 14/015 and which fails to meet the requirements of 573.223(1A).  The Tribunal is of the opinion that the applicant would have been well aware that his student visa contained condition 8516 which required him to remain enrolled at a Higher Education Sector level course.  The Tribunal is of the firm view that the applicant would reasonably have been aware that his failure to remain enrolled in an eligible Higher Education Sector level course for over two years would have an impact upon his eligibility to continue to hold his student visa.  His decision to enrol in a higher education course only weeks after receiving his NOICC suggests that was the case.  On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

12. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    There is no evidence before the Tribunal concerning the applicant’s previous and present behaviour towards the Department in favour or against cancelling the visa. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

13. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The Tribunal notes from the decision record that the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. There is no claim made or evidence before the Tribunal that this is not the case. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

14. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that ant cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

15. On the evidence before it the Tribunal considers the applicant’s breach of condition 8516 of their Student visa to be substantial.  The Tribunal considers the two-year period that the applicant failed to remain enrolled in a Higher Education Sector level course to be significant.  The grounds for cancellation have been made.  The applicant failed to attend the hearing despite the Tribunal moving the hearing from Sydney to Melbourne to facilitate his attendance without unnecessary financial cost.  The Tribunal has taken into account the applicant’s previous submissions in response to the NOICC as well as his correspondence of 21 February 2019 and other documentation he has provided.   The Tribunal has determined on the basis of the information before it that the visa should be cancelled.

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

    DECISION

17. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Justin Owen
    Senior Member