Erdenetogtokh (Migration)

[2019] AATA 4323

Erdenetogtokh (Migration) [2019] AATA 4323 (20 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bilguun Erdenetogtokh

CASE NUMBER:  1717172

HOME AFFAIRS REFERENCE(S):           BCC2017/2096982

MEMBER:Lynda Young

DATE:20 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 September 2019 at 4:27pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) – Subclass 573 Higher Education Sector – not enrolled in registered course – did not attend hearing – mother injured in accident – no genuine interest in completing studies – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116, 119
Migration Regulations 1994 (Cth), Schedule 8 Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 3 August 2017 (decision) made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant’s visa, granted on 27 October 2015, was subject to condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations) requiring the applicant to be enrolled in a registered course of study.

3.    On 26 July 2017, the applicant was issued a Notice of Intention to Consider Cancellation (NOICC) under s.119 of the Act on the basis it appeared he had not complied with visa condition 8202(2)(a) as, on evidence obtained from the Provider Registration and International Student Management System (PRISMS), the applicant had not been enrolled in a registered course of study between 16 November 2016 and 14 June 2017. The applicant responded to the NOICC by way of “Statement of Purpose and supporting documents” provided to the Department on 31 July 2017 (NOICC response).

4.    The delegate cancelled the visa on 3 August 2017 on the basis the applicant, in breach of visa condition 8202(2)(a), had not been enrolled in a registered course of study between 16 November 2016 and 14 June 2017, and the grounds in favour of cancellation outweighed the grounds against cancellation.

5.    The applicant applied to the Tribunal for review of the decision on 7 August 2017.  The issues in the present case are whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

6.    By letter emailed to the applicant 2 August 2019, the Tribunal invited the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues in his case at a hearing on 26 August 2019 at 10:00am (hearing invitation). The hearing invitation advised the applicant the Tribunal may, if he did not attend the scheduled hearing and an adjournment was not granted, make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

7.    On 19 August 2019 and again on 23 August 2019, the Tribunal sent by SMS to the applicant, a reminder about the hearing scheduled for 26 August 2019 at 10:00am.

8.    No response to the hearing invitation was received by the Tribunal, and no return to sender or delivery failure notice was received in response to the Tribunal’s email or either SMS message.

9.    The applicant failed to appear before the Tribunal at the scheduled hearing on 26 August 2019 at 10:00am.  At approximately 10:19am, the Tribunal telephoned the applicant’s mobile phone number, but the call went unanswered. Neither the applicant or anyone on his behalf provided any explanation for his non-attendance or any documents including medical certificates, submissions, written responses to the hearing invitation or any requests for postponements to the Tribunal, at any time prior to the time of making this decision.

1. The Tribunal is satisfied the applicant was properly invited to a hearing in accordance with s.379A(5) of the Act. In these circumstances, and pursuant to s.362B of the 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.

2. 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

1. Section 116(1)(b) provides for cancellation of a visa where ‘its holder has not complied with a condition of the visa.’ Visa conditions for each subclass are identified in the relevant part of Schedule 2 to the Regulations, and described in Schedule 8.

2. Condition 8202 was imposed on the applicant’s student visa.

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

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

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

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

4. If satisfied the ground for cancellation in s.116(1)(b) is made out then, as the 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, having regard to matters specified in the Act or Regulations that are required to be considered and all information relevant to the exercise of the discretion in the circumstances of the case, including matters raised by the applicant and matters of government policy.

5. There are no matters specified in the Act or the Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa.  Matters to which the Tribunal has regard in considering whether to exercise its discretion to cancel the applicant’s visa include matters raised by the applicant and the matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

6. The issues in the present case are:

   a.does the ground for cancellation in s.116(1)(b) exist?

   b.if the ground for cancellation in s.116(1)(b) exists, should the discretion to cancel the visa be exercised?

7. The applicant applied to the Tribunal for review of the decision on 7 August 2017, and attached to his application, a copy of the Notice of Cancellation and the Decision Record (application). Although the checklist of attachments in Part K of the ‘Application for Review – Migration’ form lodged by the applicant included ‘Any evidence that will support your application or any comments you wish to make and why you disagree with the decision’, only the Notice of Cancellation and the Decision Record were provided with the application.

8. The Tribunal, in its ‘Acknowledgement of Application’ letter emailed to the applicant on 10 August 2017 (application acknowledgment), requested the applicant provide, as soon as possible, material or written arguments he wished the Tribunal to consider, or any other material he believed supported his application, including a statement explaining why he disagreed with the Department's decision.

9. The Tribunal’s hearing invitation of 2 August 2019 also requested the applicant provide, within seven days, all documents on which he intended to rely in support of his case, and for any documents or written arguments to be sent to the Tribunal to be in or translated into English.

10. The applicant did not appear at the scheduled hearing to give evidence and present arguments as invited and despite the Tribunal requesting he do so, did not provide the Tribunal with any statement explaining why he disagreed with the decision, and other than those provided with his application, did not provide any documents or other material supporting his application or any submissions or written arguments relating to the issues in his case, or the grounds for cancellation or why his visa should not be cancelled, or at all. That is, the applicant has not provided the Tribunal with any further information than was provided to the Department.

11. As a result, the evidence before the Tribunal on this review application comprises:

    a.the application, including the attached Notice of Cancellation and the Decision Record;

    b.the Department’s Notice of Intention to Consider Cancellation (NOICC) emailed to the applicant, dated 26 July 2017;

    c.the applicant’s “Statement of Purpose” (statement), sent by email to the Department on 31 July 2017 in response to the NOICC and attaching, as supporting documents, a national identity card and birth certificate for the applicant’s mother, a report dated 27 October 2016 of an MRI examination of the applicant’s mother’s lumbar spine on 27 October 2016 along with A4 photocopies of the reported MRI films (collectively, NOICC response).

Did the applicant comply with Condition 8202?

1. In the Notice of Intention to Consider Cancellation (NOICC) dated 26 July 2017, the Department:

   a.notified the applicant it intended considering cancellation of his visa as it appeared from the Provider Registration and International Student Management System (PRISMS), he had not been enrolled in a registered course of study between 16 November 2016 and 14 June 2017, possibly breaching visa condition 8202(2)(a);

   b.set out the matters the delegate would take into account in considering whether to cancel his visa, being the purpose of his travel to and stay in Australia, the extent of compliance with any conditions subject to which his visa was granted, the degree of hardship that may be caused to him and any family members if the visa is cancelled, the circumstances in which the ground for cancellation arose, his past and present behaviour toward the Department, the legal consequences of a decision to cancel the visa, and any other matters;

   c.invited the applicant to provide his written response to the NOICC within five working days, addressing the identified ground(s) for cancellation, reasons why his visa should not be cancelled, the matters the delegate would take into account in considering whether to cancel his visa, and any other matter he considered relevant;

   d.notified the applicant his response would be taken into account in deciding whether to cancel his visa, and if he did not respond, the decision would be made on the information then held by the Department;

   e.outlined the consequences should the applicant’s student visa be cancelled.

2. The applicant, in his “Statement of Purpose”, emailed with “supporting documents” to the Department on 31 July 2017 in response to the NOICC, stated:

   “My name is Bilguun Erdenetogtokh, who was born in 19 November 1992 in Ulaanbaatar city, Mongolia. About my family circumstances, I live with my mother and younger sister in Mongolia. I graduate 'Mathematic Lyceum' secondary school of Mongolian University of Science and Technology in 2011. Then I successfully enrolled into bachelor of Geology at Mongolian University of Science and Technology in August 2011 and was studied there successfully.

   I always dreamt of studying abroad somewhere like Australia, dreamt of new culture filled with the new adventure. Therefore, I followed my passion to study in Australia and successfully got my student (subclass 570) visa grant on March 2015. I was accepted into Cass Training International College to study English course at that time. I believe that the 6 months period time at Cass Training International College was extremely valuable for me as this period of time provide me a chance to understand my future prospective. Following my passion, I enrolled into Bachelor of Economics at Macquarie University packaged with their Foundation course. However, due to English requirement of Macquarie University, I was required to study at Navitas English from 19 October 2015 to 07 October 2016 for 46 weeks. My mother was very happy with my decision and she financially supported me to reach my gaol to be a successful in my chosen career.

   However, while I was studying at Navitas English, I faced a lot of issues in my daily life. First of all, coming to new study environment was not very easy for me as studying in a higher level of English school made a lot of changes in my lifestyle. Secondly, Navitas English study requirement is way too high for me comparing to Cass Training International College. Thirdly, it was very hard for me to find new friends who I can talk to and seek advice. Based on those reasons, I started to feel homesick and experiencing difficulty adjusting to a new way of my life, therefore my study performance was dropping and started to fail on my exams.

   At the same time, my mother Myagmarjav Jargal had a car accident in Khairkhandulaan soum, Uvurkhangai province of Mongolia on July 24, 2016. Due to car accident, my mother has a compression of Th12 vertebral body, degenerative spondylosis and spinal hemangioma at L3 vertebral body. When I heard that my mother is under special care even without moving, I was totally shocked. She stayed in the bed for whole 3 months and taking pain medications as standing and walking was not allawed. This 3 months changed my life instantly and I felt angry, overwhelmed, stressed and upset all in same time. I planned to go back to Mongolia as my mother was suffering from the pain and depression, however she refused me to come back home as she did not want to ·cause me stress. This situation was very difficult for me to get through these darkest days. She is feeling much better than before at the moment, however she is still under regular medical check-up.

   Above mentioned reasons caused me not to study between 16 November 2016 and 14 June 2017. l already requested to re-enrol to Macquarie University in November intake and currently waiting for my revised COE. While I am waiting for my acceptance to Macquarie university, I am studying in English course to improve my language skills.

   I have attached all my supporting documents as a proof of evidence. Please kindly consider on my visa condition and allow me a chance to continue my study further.

   Thank you for your time and consideration.”

3. The “supporting documents” provided were: a national identity card and birth certificate for the applicant’s mother, a report dated 27 October 2016 of an MRI examination of the applicant’s mother’s lumbar spine on 27 October 2016 along with A4 photocopies of the reported MRI films.  These documents confirmed the applicant’s mother was injured in a car accident on 24 July 2016.

4. On 3 August 2017, the delegate cancelled the applicant’s student visa, and a copy of the Notice of Cancellation and decision were emailed to the applicant. The decision set out the following:

   a.the applicant was granted a Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa on 27 October 2015, with a stay period to 30 August 2020;

   b.the Department notified the applicant of its intention to consider cancellation of his visa on 26 July 2017, on the basis of PRISMS evidence that he was not enrolled in a registered course of study between 16 November 2016 and 14 June 2017, and invited him to respond in writing;

   c.the applicant’s response to the NOICC had not indicated whether he agreed there were grounds for cancellation, but had provided reasons why his visa should not be cancelled;

   d.on evidence obtained from PRISMS, the applicant was not enrolled in a registered course of study between 16 November 2016 and 14 June 2017, and chose to remain in Australia for an extended period beyond the two months permitted between courses, in breach of condition 8202(2)(a) of his visa;

   e.the applicant travelled to Australia to undertake a course of study to further his education and receive a qualification, and was, as at the date of cancellation, studying General English with Sunshine Coast International College and enrolled in a Certificate IV in Marketing and Communications with Training Masters.

   f.although the applicant stated he had requested re-enrolment at Macquarie University in November 2017 and was awaiting his revised CoE, there was no evidence he had applied to enrol at Macquarie University;

   g.there was no evidence of non-compliance by the applicant with his visa conditions other than visa condition 8202 when he failed to maintain enrolment in a registered course of study from 16 November 2016 until 14 June 2017;

   h.although the applicant had not provided any information regarding hardship that may be caused to him or his family if his visa was cancelled, the delegate accepted cancellation of his visa would likely result in some financial hardship as the applicant would have no work rights and unable to legally earn an income in Australia;

   i.the ground for cancellation arose from the applicant’s failure to maintain his enrolment in a registered course of study from 16 November 2016 until 14 June 2017, and remaining in Australia for an extended period beyond the two months permitted between courses.

   j.although the applicant provided a copy of his mother's MRI scan dated 27 October 2016 and a medical certificate stating her car accident occurred on 24 July 2016, his mother’s medical condition pre-existed - by several months - the applicant’s issues with his enrolment and there was no evidence to support how her medical condition affected his ability to remain enrolled and no evidence as to whether he sought assistance to defer his studies until such time that he was able to dedicate himself to his studies;

   k.there was no evidence the applicant had been uncooperative with the Department or its staff;

   l.Departmental records indicated there were no dependent visa holders to the applicant’s visa and accordingly cancellation would not result in the automatic consequential cancellation by operation of law under section 140 of the Act, of the visa of any other person;

   m.the circumstances of the applicant’s case were not such that would engage Australia's international obligations and cancellation of his visa would not lead to a breach of Australia's international obligations;

   n.the delegate accepted the applicant may, upon cancellation, become an unlawful non-citizen and be liable for detention under s189 and removal under s198 of the Act if he did not voluntarily depart Australia. Additionally, he may be subject to s.48 of the Act and may be prevented from applying for further visas onshore, and may not be granted a temporary visa for three years as Public Interest Criterion 4013 may apply.

   o.the delegate was satisfied the grounds for cancelling the visa outweighed the reasons not to cancel the visa.

5. On its face, the Statement of Purpose addresses the ‘reasons [that] caused [the applicant] not to study’ (emphasis added), rather than his non-enrolment, between 6 November 2016 and 14 June 2017. Considering it was not prepared in his native language, it would not be unreasonable for the Tribunal to infer the applicant failed to distinguish ‘study’ from ‘enrolment’, had used the terms interchangeably, and accordingly conclude the applicant agreed the ground for cancellation existed.

6. Nothing in the evidence before the Tribunal indicates or suggests the applicant disputes in any manner the existence of the ground for cancellation, regardless of whether the applicant inferentially agreed the ground for cancellation existed.  The uncontradicted evidence in respect of the existence of the ground for cancellation set out in the decision record satisfies the Tribunal the applicant was not enrolled in any course of study for the 6 months and 29 day-period between 16 November 2016 and 14 June 2017. In these circumstances, it is unnecessary for the Tribunal to determine whether the applicant inferentially admitted or agreed he had not been enrolled between 6 November 2016 and 14 June 2017.

1. Accordingly, the Tribunal is satisfied the applicant was not enrolled in a registered course of study from 16 November 2016 until 14 June 2017, in breach of visa condition 8202(2)(a).

2. The Tribunal is accordingly satisfied the ground for cancellation in s.116(1)(b) exists.

3. As the 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

1. Having found that the applicant has not complied with a condition of the visa, 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.

2. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant in his response to the NOICC, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

3. The PAM 3 matters are addressed in the Decision Record. The applicant has not provided any material to the Tribunal or given any evidence at a hearing before the Tribunal disputing any of the information or conclusions set out in the Decision Record in respect of the PAM3 matters, or otherwise addressing the PAM3 matters or other circumstances germane to the Tribunal’s consideration in deciding whether to exercise its discretion to cancel the visa.

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

1. According to his Statement of Purpose, the applicant travelled to Australia to follow his “passion to study in Australia”.  The Decision Record states the applicant travelled to Australia to undertake a course of study to further his education and receive a qualification. There is no evidence before the Tribunal to suggest that the applicant’s original intention for his travel to, and stay in, Australia was not for the purpose of study.

2. On the evidence before the Tribunal, the applicant was not enrolled in any course of study for a period of 6 months and 29 days, from 16 November 2016 until 14 June 2017.

3. Student visas are granted for the purpose of non-citizens and non-permanent residents studying towards, and achieving, an educational qualification in Australia. That purpose cannot be achieved unless the visa holder is enrolled in a registered course of study. Taken in that context, the Tribunal finds the applicant’s failure to be enrolled in a registered course of study for a period of 6 months and 29 days is significant, and weighs in favour of cancellation.

4. The Tribunal is not satisfied the applicant’s originally intended purpose for his travel to and stay in Australia provides a compelling need to travel to and remain in Australia. Failing to be enrolled for more than six months is inconsistent with such need. Similarly, if he genuinely had compelling need, it would be reasonable to expect the applicant to have participated meaningfully in his review application, rather than not attending the hearing without explanation. The Tribunal gives this consideration weight in favour of cancelling the visa.

5. The applicant stated, and the delegate accepted, as at the date of cancellation (3 August 2017), the applicant was enrolled into and currently studying General English with Sunshine Coast International College and held a future enrolment in a Certificate IV in Marketing and Communications with Training Masters.  The applicant also stated he was then awaiting Macquarie University’s acceptance of his request to re-enrol in November 2017 and a revised Confirmation of Enrolment.  Nothing in the applicant’s supporting material provided to the Department relates to any current or future enrolment or studies or re-enrolment at Macquarie University. 

6. The available evidence satisfies the Tribunal the applicant was, as at 3 August 2017:

   a.enrolled in a registered course;

   b.studying  a general English course at Sunshine Coast International College; and

   c.enrolled in a Certificate IV in Marketing and Communications with Training Masters.

7. The available evidence does not disclose:

   a.the status of the applicant’s enrolment in the Certificate IV in Marketing and Communications with Training Masters after 3 August 2017;

   b.the outcome of the applicant’s request to be re-enrolled in November 2017 at Macquarie University.

8. Given the applicant’s failure to supplement the information provided to the Department or otherwise provide any material to the Tribunal about his enrolment and studies after 3 August 2017, the available evidence is unable to satisfy the Tribunal the applicant commenced and/or completed the Certificate IV in Marketing and Communications course he enrolled into with Training Masters or that Macquarie University accepted his request to be re-enrolled in November 2017, or at all.

9. Nothing in the evidence before the Tribunal suggests the applicant has a compelling need to remain in Australia or that he had a compelling need to travel to Australia. The applicant's non-engagement in study for which purpose his visa was granted for 6 months and 29 days from 16 November 2016 until 14 June 2017 together with his failure to participate meaningfully in his review application satisfy the Tribunal the applicant does not have a compelling need to remain in Australia. The Tribunal gives this consideration weight in favour of cancelling the visa.

The extent of any non-compliance with visa conditions

1. The only instance of non-compliance identified in the decision is the applicant’s failure to remain enrolled as required to comply with visa condition 8202(2)(a). Although the evidence does not satisfy the Tribunal the applicant breached any other condition imposed on his visa, he was not enrolled for more than six months. The non-compliance is significant and the Tribunal weighs this factor in favour of cancelling the visa.

2. Other than his non-compliance with condition 8202, there is no evidence before the Tribunal of any non-compliance with any other conditions of his visa. The Tribunal weighs this factor in favour of not cancelling the visa.

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

1. The delegate accepted cancellation of the applicant’s visa would likely result in some financial hardship as the applicant would have no work rights and unable to legally earn an income in Australia.  The Tribunal considers this hardship weighs in favour of not cancelling the visa.

2. Given the applicant's failure to attend the hearing, the Tribunal is unable to be satisfied any other specific hardship may be caused to the applicant or his family if his visa is cancelled, and considers this factor weighs in favour of cancellation

3. The Tribunal accepts visa cancellation ordinarily results in the visa holder becoming unlawful and liable for detention under s.189 and removal under s.198 unless the visa holder voluntarily departs Australia or holds a bridging visa. As a review applicant before the Tribunal is eligible for a Bridging E Visa which would remain in force for 35 days after the Tribunal makes its decision on the review application or the applicant departs Australia, whichever is the earlier, the Tribunal is not satisfied the applicant would immediately become unlawful or liable to detention or removal upon cancellation, or be caused any hardship as might otherwise result.

4. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Act, which significantly limits the classes of visa for which he may apply onshore. The Tribunal is satisfied cancellation of the applicant’s visa would prevent him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013.

5. The Tribunal considers any hardship as may be caused by these intended consequences of cancellation weighs in favour of not cancelling the visa

Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

1. The applicant stated his failure to study between 16 November 2016 and 14 June 2017 was caused by issues he faced while studying a 46-week English course commencing 19 October 2015, as studying in a higher level English course in a new study environment resulted in changes in his lifestyle, he had difficulty making friends and felt the course was too difficult for him, and became homesick and had difficulty adjusting, and reflected in his poor study performance and failing exams. He was shocked on learning his mother was unable to move for three months after she was injured on 24 July 2016 in a vehicle accident, and these three months changed his life instantly and he became angry, overwhelmed, stressed and upset and his mother did not allow him to return home.

2. The Tribunal accepts these matters would, as the applicant stated, have impacted negatively on the applicant’s ability to study, study performance, and his exam performance for a period of time. However, the applicant does not explain how the issues he was facing affected his ability to remain enrolled. The applicant states he was suffering these issues while studying his 46 week English course commencing 19 October 2015. That course completed on 7 October 2016, but the applicant’s period of non-enrolment did not commence until 6 to November 2016. His mother’s accident and the subsequent 3 month period during which applicant since his life changed also predate the commencement of his period of non-enrolment. 

3. As the applicant has not explained how the issues he was facing, which occurred in a period ending before the period of his non-enrolment commenced, led to him being unable to remain enrolled and has not provided any medical or psychological evidence about the effect of the issues he faced on his ability to be or remain enrolled, the Tribunal is not satisfied there were circumstances beyond the applicant’s control that led to his failure to be enrolled.

4. Given the applicant did not attend the hearing and has not provided any further information as to the circumstances surrounding his breach of condition 8202, the Tribunal is unable to be satisfied about the circumstances in which the ground for cancellation arose, and unable to be satisfied there were any circumstances beyond his control that led to the applicant breaching his visa conditions. The Tribunal weights this factor in favour of cancelling the visa.

Past and present conduct of the visa holder towards the Department

1. There is nothing in the evidence before the Tribunal to suggest that the applicant’s past or present behaviour towards the Department was adverse. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

1. The Tribunal is satisfied cancellation of the applicant’s visa would, in addition to preventing him re-entering Australia for up to 3 years as he may not meet the public interest criterion 4013, limit his ability to remain in Australia but would not, whilst his Bridging Visa E remains in-force, result in him immediately becoming unlawful and liable to detention under s.189 of the Migration Act or removal under s.198 of the Migration Act.

2. The Tribunal accepts the applicant would, if his visa were cancelled, be subject to s.48 of the Migration Act, which significantly limits the classes of visa for which he may apply onshore.

3. The Tribunal gives this consideration weight in favour of not cancelling the visa. 

Whether there would be consequential cancellations under s.140 and whether any international obligations would be breached as a result of the cancellation.

1. On the evidence before the Tribunal, there are no persons in Australia whose visas would, or may, be cancelled under s.140. There is nothing before the Tribunal to suggest Australia’s international obligations, including in respect of non-refoulement and best interests of the children, would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour of nor against cancelling the visa.  

Other relevant considerations

1. As the applicant did not attend the Tribunal hearing, the Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.  

Conclusions

1. In circumstances of the applicant’s failure to take any active role in the Tribunal’s review process or provide the Tribunal with any information or supporting material in addition to what was provided to the Department and failure to be enrolled for more than six months when neither the purpose for which his visa was granted or his ‘passion to study’ and purpose of his travel to and stay in Australia can be achieved without enrolment, the applicant has not satisfactorily demonstrated he is a genuine student who should have his visa reinstated because he is genuinely interested in completing his studies.

2. Taken together and considered as a whole, the Tribunal is satisfied the matters weighing in favor of cancellation of the visa outweigh the matters weighing against cancellation. 

3. The Tribunal concludes the visa should be cancelled.

DECISION

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

Lynda Young
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

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

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

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

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

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

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

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

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

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

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

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

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