Gill (Migration)

Gill (Migration) [2021] AATA 1781 (5 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rimple Jajdeep Singh Gill
CASE NUMBER:  2003403
HOME AFFAIRS REFERENCE:               BCC2019/5338299
MEMBER:L. Symons
DATE:5 May 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 05 May 2021 at 4:29pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – non-genuine student – substantial period of breach – legal consequences of cancellation decision – not prevented from lodging a Partner visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 48, 116
Migration Regulations 1994 (Cth), r 2.12; Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 14 February 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had breached condition 8202(2)(a) of his Student visa as he was not enrolled in a registered course since 6 December 2018. On 21 February 2020, he applied to the Tribunal for a review of that decision.
The applicant appeared before the Tribunal on 17 February 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his registered migration agent. His migration agent withdrew from the proceedings shortly prior to the hearing.
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 AND FINDINGS
The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8202(2)(a) 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.
Did the applicant comply with Condition 8202(2)(a)?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. There is no evidence before the Tribunal to indicate that condition 8202(1) applies to the applicant and he therefore must comply with condition 8202(2). Relevantly, condition 8202(2)(a) requires that he be enrolled in a full time registered course. His visa was cancelled by the Department of Home Affairs (the Department) on the basis he was not enrolled in a full time registered course since 6 December 2018.
The applicant has provided the Tribunal with a copy of the Decision Record dated 14 February 2020. It indicates that he was granted a subclass 500 Student visa on 25 September 2017. This visa was subject to a number of conditions including condition 8202. On 29 January 2020, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he had breached condition 8202(2)(a) of his Student visa because he had not been enrolled in a full time registered course since 6 December 2018. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled.
On 3 February 2020, the applicant provided the Department with a response to the NOITCC. In his response, he stated that he did comply with the condition but then made submissions on why his Student visa should not be cancelled. He stated that, after his arrival in Australia, he met and married a woman who is a permanent resident in Australia. They now have a child who is an Australian citizen. He has responsibility to look after his child, wife and her mother. Three of his relatives died in India. His bereavement for them coupled with household chores left him little time to pursue his studies. In April 2019, he tried to obtain a Confirmation of Enrolment (COE) from an education provider in Coffs Harbour but was unable to so. He has been striving to return to his studies.
During the hearing, the Tribunal sought to clarify the applicant’s position in relation to whether or not he agreed that he had breached condition 8202(2)(a) of his Student visa. He gave evidence that he had not complied with condition 8202(2)(a) of his Student visa.
The records of the Department indicate that the applicant was granted a subclass 573 Student visa on 29 July 2014. He arrived in Australia on 2 August 2014. On 25 September 2017, he was granted a subclass 500 Student visa which was subject to a number of conditions including 8105, 8202, 8501, 8516, 8517, 8532 and 8533. The records of the Department of Education’s Provider Registration and International Student Management System (PRISMS) indicate that he was last enrolled in a Bachelor of Business (Accounting) degree from 12 November 2018 to 9 May 2021. His enrolment in this course was cancelled on 6 December 2018 for non-commencement of studies. He has not been enrolled in a registered course since then.
The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that he has breached condition 8202(2)(a) of his Student visa. He responded that he breached this condition of his Student visa due to family circumstances.
Having considered the evidence, the Tribunal finds that the applicant has not been enrolled in a full time registered course since 6 December 2018. Therefore, the Tribunal finds that he has not complied with condition 8202(2)(a) of his Student visa.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of his Student 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. 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’.
Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling need to travel to or remain in Australia?
In his response to the NOITCC, the applicant stated that since he first arrival in Australia on 2 August 2014 he has been diligently studying. He always had a passion and hobby to learn commercial cookery and hospitality skills and wanted to become a professional Chef and Business Manager overseas based on Australian qualifications and international exposure. He therefore studied and successfully completed a package of courses and has always maintained course requirements as a temporary resident in Australia. He does not have any financial debts towards the Commonwealth of Australia.
During the hearing, the applicant gave evidence that he came to Australia in August 2014 to study, get a good education, return to India and start his own business. After he got married, he wanted to get a good education and do something good for his wife and child. He completed his Diploma and got good marks. Then he suffered two losses in his family. The biggest loss for him was his aunt. He spoke to her every day and was on the telephone when she got electrocuted.
The applicant gave evidence that he last studied in Australia in 2018. The Tribunal asked him why he did not return to India if he came here to study and was not studying. He responded that he kept thinking that his circumstances would change and he would be able to study again. Then he met his wife and thought he would get more opportunities to study and go ahead. He did not want to return to India without achieving his goals. When asked whether there was any reason why he now needs to remain in Australia, he responded that he wants to finish his course. He wants to do better for his future and get his wife and one year old son settled.
The PRISMS’s records indicate that since the applicant came to Australia on 2 August 2014, he has completed an English language course from 4 August 2014 to 10 October 2014. He then enrolled in and completed a Diploma of Business. He subsequently enrolled in a number of Bachelor of Business degree courses but did not complete them. He then enrolled in an Advanced Diploma of Leadership and Management from 10 April 2017 to 23 March 2018. His enrolment in that course was cancelled on 23 October 2017 because he notified his cessation of studies. He has been enrolled in further Bachelor of Business degree courses but did not complete them. He has enrolled in a total of seven Bachelor of Business degree courses and has not completed any of them.
The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that his record as a student indicates that he was granted two Student visas to undertake higher education studies (in Australia) but he has not completed any higher education studies since he came to Australia on 2 August 2014. The Tribunal noted that it may find that he has not fulfilled the purpose for which he was granted the Student visa. The Tribunal noted that it may find that he used the Student visa for the purpose of extending his stay in Australia and working here. (His evidence is that he is currently working as a laundry assistant and prior to that worked as a cook, cleaner and farmhand). He declined to respond.
The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 14 February 2020 which indicates that the PRISMS records show that he has not completed a Certificate II in Hospitality as claimed, he has not undertaken any studies after he was granted the subclass 500 Student visa on 25 September 2017 and his last actual study day was 15 September 2017.
Having considered the evidence, the Tribunal accepts that the applicant initially came to Australia with the intention of obtaining a Bachelor of Business degree and returning to work in India. The evidence from the PRISMS’s records, referred to above, indicates that he has not ‘successfully completed a package of courses and always maintained course requirements’ as a temporary resident in Australia as he claimed in his response to the Department.
The applicant did not take steps to remedy the problem after he was issued with the NOITCC. The Tribunal is not satisfied that he is a genuine student. The Tribunal finds that he has not fulfilled the purpose for which he was granted the subclass 500 Student visa. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia as a student.
The Tribunal gives this consideration weight in favour of affirming the decision to cancel the applicant’s Student visa.
Circumstances in which the ground for cancellation arose
In his response to the NOITCC, the applicant stated that “I have never attempted to use the student visa program to remain resident in Australia. Subsequent to my arrival onshore I have been in a relationship with Christina Chand, (now spouse) and together we have Aidan Gill (our child) out of this matrimonial relationship. I have been engaged in looking after my wife, child and caring for Gyan Mati, my spouse’s dependent mother who has been living but is ailing off and on. The level of responsibilities was thrust upon me suddenly with my wife being unable to support and work by herself with an infant child”.
In his response to the NOITCC, the applicant stated “in addition, back home in India, there were a series of three deaths of my close relatives. Due to unforeseen family circumstances, primarily due to the sudden demise of my dear ones in my home country, it affected my studies. The bereavement coupled with the household tasks of the family chores left with little time to pursue my studies then. Nevertheless, in April 2019, I personally visited ETC located in Coffs Harbour to obtain a Confirmation of Enrolment but was given a negative response on the pretext that they did not provide COE to international students. However, in absolute earnest, I have been striving to get back to school and have been trying to inquire about the available courses both in New South Wales and on the Gold Coast. I believe that proximity to my family would be able to mitigate logistical issues in the best interest of our child and dependent family members in various ways”.
During the hearing, the Tribunal asked the applicant about his wife. He initially stated that he first met her in April 2017 and then stated that he met her in June 2017. They had a relationship, lived together until May 2018 and then got married. She worked at the same pizza shop that he worked at. She was studying at the time and then got pregnant. She is a permanent resident in Australia. She has a large family in Australia. Her mother lives with them. She is in receipt of a pension.
The applicant gave evidence that due to family circumstances in India and Australia he was unable to register in a full time course after 6 December 2018. His wife was pregnant, he had financial difficulties and “everything was on his head”. When his grandmother, Iqbal Kaur, passed away he went to a Doctor, obtained a Certificate and gave it to his education provider to get some time off his studies. Then his aunt, Surinder Kaur, passed away in 2016 or 2017.
When the Tribunal reminded the applicant that it was referring to his failure to be enrolled in a full time registered course after 6 December 2018, he responded that in 2018 he spoke to his education provider about his problems and was told that he had to pay his fees. He asked for an extension of time to pay his fees and this was refused. He was told that if he did not pay his fees on time his COE would be cancelled.
The applicant gave evidence that his father had a heart attack in 2016 and was hospitalised. The Doctors discovered that his valve was blocked and recommended surgery. He was in hospital for 2 months. He was the only one earning an income and was unable to work for a long time. His fees were really expensive. He worked but could not afford to pay his fees. He explained this to the Department. If he gets a chance to study again, he will definitely pay his fees.
The applicant gave evidence that he did not speak to the Department about the problems he was having. When his Student visa was cancelled, he sent the Department an email. He then consulted a couple of migration agents and they asked him for money as well. In 2019, he went to ATT and applied for a COE but was unable to obtain one.
The applicant provided the Department with a number of supporting documents. This included copies of a letter dated 25 September 2017 from the Department notifying him of the grant of his subclass 500 Student visa, his Birth Certificate, his Senior Secondary Examination Certificate issued by the Punjab School Education Board, the biodata page of his Indian passport, his NSW Photo Card, his NIB Medical Insurance card, his Marriage Certificate, the biodata page of his wife’s Fijian passport, his wife’s Medicare card, his wife’s Learner Driver Licence, his son’s Birth Certificate, his son’s Australian Citizenship Certificate, the biodata page of his son’s Australian passport, his mother-in-law’s Photo Card, his mother-in-law’s Medicare card, the biodata page of his mother-in-law’s Fijian passport, a Death Certificate for Kuldeep Singh alias Hazara Singh, a translation of a Death Certificate for Surinder Kaur and a translation of a Death Certificate for Gurdev Kaur.
The Tribunal raised a number of issues with the applicant in relation to the reasons he gave for not being enrolled in a full time registered course since 6 December 2018. The Tribunal noted that his supporting documents indicated that he was married on 26 May 2018 and his son was born on 9 September 2019. He stopped studying (on 15 September 2017) long before the birth of his son. The Tribunal noted that it had difficulty accepting that his failure to enrol in a full time registered course had anything to do with his responsibility to look after his child, wife and mother in law. He responded that there was a financial issue in India and he could not pay his fees. His wife got pregnant. He tried to obtain a COE.
The Tribunal raised concerns in relation to the Death Certificates he provided the Department. The Tribunal noted his evidence that his grandmother, Iqbal Kaur, and his aunt, Surinder Kaur, passed away. The Tribunal noted that one of the Death Certificates he provided was for a male named Kupdeep Singh alias Hazara Singh. He responded that that was his grandfather, Hazara Singh, who passed away in 2009. The Tribunal noted that the Death Certificate indicated that he passed away on 18 December 2018. He then stated that that was his uncle.
When the Tribunal noted that the applicant had made no mention of his grandfather passing away, he responded that he forgot to mention that his grandfather died at the same time. The Tribunal raised concerns in relation to the authenticity of this Death Certificate. He later gave evidence that his grandfather was Kuldara Singh and Kuldeep Singh was his “cousin brother” who passed away in 2018. He stated that they did not tell him that he died and he saw it in a newspaper.
The applicant stated that his grandmother, Iqbal Kaur, passed away in 2016 and his aunt, Surinder Kaur, passed away in July 2019. One of the Death Certificates he provided was for Gurdev Kaur and the date of death on that Death Certificate was 15 January 2019. This is not consistent with his evidence in relation to his grandmother’s name or year of death. The other Death Certificate was for Surinder Kaur and the date of death was 24 July 2019. The Tribunal raised as an issue with the applicant the fact that the Death Certificate he provided was not consistent with his evidence in relation to his grandmother’s death. He responded yes and offered no further explanation.
The Tribunal noted that the applicant’s aunt passed away long after he stopped studying and his (last) enrolment was cancelled. The Tribunal noted that it had difficulty accepting that his failure to enrol in a full time registered course had anything to do with the death of his aunt in India. He responded “that is all”.
The Tribunal raised as an issue with the applicant the fact that his wife had not given any evidence to the Tribunal and its concerns that they may no longer be together. He responded that his son was being vaccinated on that date. They are still together and have been together since 2017. He would provide evidence of their (ongoing) relationship. When asked why his wife had not sponsored him for a Partner visa, he responded that they have financial difficulties. He was saving for that, but they had a few expenses and could not apply for the visa.
The Tribunal gave the applicant further time after the hearing to provide evidence from his wife and any other evidence he wished to provide the Tribunal. He did not provide the Tribunal with any documentary evidence.
Having considered the evidence, the Tribunal accepts that the applicant’s father suffered a heart attack in 2016 and underwent heart surgery for a blocked valve. The Tribunal accepts that he may have been off work for some time. The Tribunal does not accept that this is the reason why the applicant was unable to enrol in a full-time registered course after 6 December 2018. The Tribunal accepts that the applicant’s grandfather passed away in 2009. The Tribunal accepts that his uncle or, alternatively, his “cousin brother” passed away in 2018. The Tribunal accepts that his grandmother passed away in 2016 and his aunt, Surinder Kaur, passed away in July 2019. The Tribunal does not accept that the death of any or all of these relatives had anything to do with why he was unable to enrol in a full-time registered course after 6 December 2018.

The Tribunal accepts that the applicant has responsibility to provide for his wife and child. However, the Tribunal notes that the evidence indicates that he stopped studying on 15 September 2017 which was before his marriage on 26 May 2018 and long before the birth of his son on 9 September 2019. He was last enrolled in a full-time registered course on 6 December 2018. This was also long before the birth of his son. The Tribunal is of the view that if he did/does not have the capacity to pay the fees to undertake a Bachelor degree in Australia, he is not a genuine student. He has the option to apply for a Partner visa but has not exercised that option.
The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s Student visa.
The extent of compliance with visa conditions
In his response to the NOITCC, the applicant stated that he has “never had any depraved immigration history” other than his current “Student visa incident”. His perseverance towards his academic studies with respect to his Student visa has been “innately progressive”. From the time of his arrival (in Australia), he has completed courses in English for Academic Purposes and Upper Intermediate Level. He thereafter pursued a Diploma of Business and completed it. He completed a Certificate II in Hospitality. He intended to pursue Commercial Cookery in a Certificate III and Certificate IV leading to a Diploma of Hospitality that would have put him in a “formidable and competitive edge” compared to his peers.
In his response to the NOITCC, the applicant stated that he “initially started working in the hospitality industry to imbibe additional hands-on practical on job training skills that will enhance her knowledge area according to her planned goals and, provide her an astute competitive advantage for her future career as a professional Chef. Moreover, the Applicant was fully aware that soon, the award certification of Cookery & hospitality will surely capacitate her to acquire a professional hospitality-related position not only in her home country as well as in other parts of the world. However, the latter is still a dream waiting to be realised”. (sic)
The applicant has filed the Tribunal with a copy of the Department’s Decision Record dated 14 February 2020. It indicates that he was granted a subclass 500 Student visa on 25 September 2017, the PRISMS record does not indicate that he completed a Certificate II in Hospitality, the PRISMS record shows that his last study date was 15 September 2017 and he has not undertaken any studies whilst holding his current subclass 500 Student visa issued on 25 September 2017. This is not consistent with his evidence to the Tribunal that he last studied in 2018.
The applicant has not been enrolled in a full time registered course since 6 December 2018. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa.
During the hearing, the Tribunal asked the applicant what his plan was if he had not received the NOITCC from the Department. He responded that he was looking for new courses and was thinking of moving back to Sydney or to Brisbane to enrol in a course as there are not many courses in Coffs Harbour. By that time his Student visa was cancelled. He has not breached any other condition of his Student visa. There is no evidence before the Tribunal to indicate that he has not complied with any other visa conditions.
Having considered the evidence, the Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s Student visa.
Degree of hardship that may be caused
In his response to the NOITCC, the applicant stated that he shudders to think of “the immense pressure and the state of our household due to my physical absence from them. my wife is a permanent resident awaiting her citizenship ceremony and, our Australian citizen child would be emotionally and personally devasted at the thought of losing an indispensable support. Also, there is my wife’s ailing grandmother dependent on my wife who will be completely crestfallen at the thought of losing her support as well”.
In his response to the NOITCC, the applicant stated that he “cannot imagine my life separated and, without my family onshore for even a brief period. We have a closely bonded family and, our jointly nurturing our dreams in bringing up our child with mutual trust and support. My studies are a pathway that I will be able to long-term usher and provide in a higher standard of living to our family. My family cannot perceive moving away, being well settled both emotionally and financially. Together they have very strong ties with Australia and have made this country their home for ever”.
In his response to the NOITCC, the applicant stated that “fulfilling the remaining family duties with my extended family in India, I propose to complete my studies with higher level of qualifications that will be internationally recognised. At no point of time, would I be able to move further with a tarnished immigration history of a visa cancellation. Rather, it would close my extensive options in most of the other countries as well”.
During the hearing, the Tribunal asked the applicant what hardship may be caused to him if his Student visa is cancelled. He responded that he would not know how to handle it emotionally. His wife and son are here and he would be separated from them. His wife’s mother is 76 years and is old. They depend on him. He will be disappointed if he cannot reach his goal. When asked whether there was any reason why they could not return to India with him, he responded that his wife went to India once and did not like the environment. He was engaged in India and broke off the engagement. They warned him that if he returns, they will kill him. He is afraid to return to India.
Having considered the evidence, the Tribunal accepts that, if the applicant has to return to India as a result of the cancellation of his Student visa, he will experience emotional, psychological and financial hardship as would his wife and child. However, the Tribunal notes that his wife is a permanent resident in Australia and is able to sponsor him for a Partner visa. The cancellation of his Student visa will not prevent him from lodging a valid application for a Partner visa whilst remaining in Australia. (r.2.12)
The Tribunal accepts that if the applicant’s Student visa is cancelled, he may not be able to study in Australia for a period of 3 years. However, the Tribunal notes that he last studied on 15 September 2017 and did not undertake any studies whilst the holder of the subclass 500 Student visa issued on 25 September 2017. The Tribunal is therefore not satisfied that he has any intention of studying in Australia or that he is a genuine student.
The Tribunal gives this consideration little weight in favour of setting aside the decision to cancel the applicant’s Student visa.
Past and present behaviour of the visa holder towards the Department
In his response to the NOITCC, the applicant stated that his “correspondence and compliance with the Department of Home affairs has been duly sincere. I have always kept the immigration authorities’ abreast with my personal situation and, have updated the change in my circumstances. Further, I have been lawful and obediently following the visa specifications except for the current one. Such a fall out too has been due to extraneous circumstances that have been beyond my control and, about which I had no prior inkling”.
During the hearing, the applicant gave evidence that he has had no other problems with the Department other than for the cancellation of his Student visa. He kept the Department informed of his address and email address.
There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department.
The Tribunal gives this consideration some weight in favour of setting aside the decision to cancel the applicant’s Student visa.
Whether there would be consequential cancellations under s.140 of the Act
During the hearing, the applicant gave evidence that no one else will have their visa cancelled if his Student visa is cancelled.
There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act.
This consideration is therefore not relevant in the applicant’s case.
Legal consequences of a decision to cancel the visa
In his response to the NOITCC, the applicant stated that “the repercussions of a visa cancellation for me would be horrendous. I believe that an exclusion period would apply and, I will lose study rights completely. On the other hand, I believe that there would be immense professional value to gain some hands-on practical work experience and certification in the Hospitality industry. Let alone the impact on my future, I shudder to think of the plight of my family particularly my infant child who would be deprived of the affection due to no fault of hers. The unimaginable emotional and physical trauma and hardship of the loved one attached to me remains unquantifiable”. (sic)
During the hearing, the applicant gave evidence that if his Student visa is cancelled, he would appeal. He cannot stay without his wife and son and they cannot move to India. He is attached to his son and would be hurt emotionally. The whole family depends on him including his wife’s mother.
If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criteria may prevent him from being granted particular temporary visas for a period of 3 years from the date of cancellation. This will affect his ability to make a valid application for a Student visa for 3 years. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa.
However, the Tribunal notes that Partner visas are a class of visa prescribed in the Regulations (r.2.12) for the purpose of s.48 of the Act and the applicant will be able to apply for a Partner visa whilst he remains in Australia. He would therefore not have to be separated from his wife, son and mother-in-law.
The Tribunal gives this consideration little weight against affirming the decision to cancel the applicant’s Student visa.
Australia’s international obligations
In his response to the NOITCC, the applicant did not raise any issues in relation to Australia’s international obligations.
During the hearing, the Tribunal asked the applicant whether there was any reason why he could not return to India. He responded that he is attached to his wife and son and he cannot “stay without them”. He is afraid to return to India because of an issue with his fiancé’s family. He was engaged to a woman in India and broke off the engagement. Her family have threatened to kill him if he returns to India. He has reported this to the Indian Police in case anything happens to him.
As the applicant is able to apply for a Partner visa whilst remaining in Australia, even if his Student visa is cancelled, the Tribunal is not satisfied that he would be forced to separate from his wife and child. In view of his new claim that he is afraid of returning to India because of his former fiancé’s family, the Tribunal notes that he has not made an application for a Protection visa nor has he claimed that he is unable or unwilling to avail himself of the protection of India or that he is unable to obtain effective State protection in India.
The Tribunal is not satisfied, on the evidence before it, that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations.
The Tribunal gives this consideration no weight in favour of setting aside the decision to cancel the applicant’s Student visa.
Any other relevant matter
During the hearing, the Tribunal asked the applicant if there were any other reasons why his Student visa should not be cancelled. In response, he repeated his previous evidence.
The Tribunal is not aware of any other relevant matter.
CONCLUSION
Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the Student visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
L. Symons

Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2021] AATA 1781

5 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Appeal