Gunawan (Migration)

[2018] AATA 5461

Gunawan (Migration) [2018] AATA 5461 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr I Kadek Eko Juliyadi Gunawan

CASE NUMBER:  1619903

HOME AFFAIRS REFERENCE(S):           BCC2016/2972189

MEMBER:Justin Owen

DATE:16 November 2018

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 November 2018 at 11:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – academic record – completed only a two month course since grant of visa – lengthy period of not studying – failure to maintain enrolment – consideration of discretion – employment history – working two to three days a week – sending money home to parents in Indonesia – commitment to study – non-compliance with visa conditions – psychological report – depression and anxiety – broke up with girlfriend – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8202

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 November 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 delegate cancelled the visa under s.116(1)(fa)(i) on the basis that it appeared that the applicant’s primary purpose for holding a visa was not for the purpose of study and he was not, or likely not to be, a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 12 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

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

5. 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

6. 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)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

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

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

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

10. The Tribunal notes from the decision record the applicant supplied the Tribunal that on 2 November 2016 the applicant was notified of the Department’s intention to consider cancellation and invited to respond in writing. The decision record states that on 9 November 2016 the applicant wrote to the delegate in response to the Department’s NOICC where he did not dispute the grounds for cancellation. The decision record states that the grounds for cancellation were under s.116(1)(fa)(i) because it appeared that the applicant’s primary purpose for holding a student visa was not for the purpose of study and he was not, or likely not to be, a genuine student.

11. The Tribunal at the hearing noted from the decision record that the applicant had been in Australia for two and half years but had only completed in that time a two month course in General English.  At the hearing the Tribunal asked the applicant if that was correct.  The applicant agreed it was.  The Tribunal noted that the decision record the applicant supplied stated that PRISMS records indicated that he did not study for a period of nineteen months and was not enrolled for a period of twelve months.  The Tribunal asked if this was correct.  The applicant conceded it was the case.            

12. The decision record stated the applicant had an approved Confirmation of Enrolment for a Diploma of Business course at Sydney Metro College which commenced in 26 September 2016.  The applicant conceded in oral evidence that after he paid fees and enrolled he subsequently did not attend any classes for this course and his enrolment had been cancelled.  The applicant conceded he had been had not been enrolled in a registered course since 2017.

13. The applicant agreed in oral evidence that the only course he had completed since being granted the visa in 2014 was a two month General English course.  The decision record the applicant supplied the Tribunal states this was undertaken over four years ago between 24 March 2014 and 30 May 2014.   

14. The Tribunal noted the applicant’s claims in his response to the NOICC two years earlier that he had claimed depression and anxiety as a reason as to why he had failed to remain enrolled and studying in Australia.  The Tribunal noted that at the time the applicant said he was feeling better and had enrolled in a Diploma in Business at Sydney Metro College.  In response to the Tribunal’s questions the applicant conceded that he had not sought any further treatment beyond his visit to the psychologist on 8 November 2016 after receiving the NOICC.  He said he did not seek any further treatment again as he felt better.  The applicant conceded in oral evidence that he had no other evidence to illustrate that he had been receiving treatment for any psychological or mental issues prior to visiting the psychologist on 8 November 2018 and had not received any treatment since.  The Tribunal asked the applicant if he obtained the psychologist’s report in an attempt to meet his visa requirements and negate the breach of his visa conditions.  He conceded that it was.

15. The Tribunal asked the applicant that, given he was not studying and had not done so for a significant period of time, what he was doing.  The applicant said he was working two to three days a week in a coffee shop.         

16. On the evidence before it, the Tribunal is satisfied that the applicant, as the holder of a Student visa is not, or is likely not to be, a genuine student.

17. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1(fa)(i) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

18. 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’.

19. 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 that since the grant of his 573 Student visa the applicant had been in Australia for approximately two years and six months but had only completed a two-month General English course.  PRISMS also indicated, according to the decision record the applicant supplied the Tribunal, the applicant did not study for a period of nineteen months and was not enrolled for a period of twelve months.  In oral evidence to the Tribunal the applicant conceded that since the cancellation of his Student visa two years ago, he had not attended any classes for the Diploma of Business he commenced in September 2016 and his enrolment had subsequently been cancelled. 

20. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia.  The Tribunal notes from the decision record that the applicant was granted a 573 Higher Education Sector visa on 4 March 2014 in order to study a General English course between 24 March 2014 and 30 May 2014 at Global Education & Tourism Group Pty Ltd and a Bachelor of Business from 28 July 2014 to 21 July 2017 at the Australian Institute of Higher Education Pty Ltd (AIH).  The PRISMS record indicates that the applicant was found not to meet the entry requirements for the Bachelor of Business and the Confirmation of Enrolment was cancelled on 25 March 2014.  On this date the Australian Institute of Commerce & Language (AICL) approved a CoE for a Diploma of Business course from 14 July 2014 until 14 July 2015 whilst AIH approved a Bachelor of Business course due to commence 27 July 2015.  The decision record states that PRIMS indicated that after finishing the two-month General English course the applicant commenced a Diploma of Business on 14 July 2014 but was granted a deferral for two months for medical treatment between 2 February 2015 and 2 April 2015.  AICL then approved another Diploma of Business course due to commence 20 April 2015.  The applicant departed Australia for about five weeks in January 2015 according to the decision record.  He returned in February 2015 but did not commence the Diploma of Business course with AICL and his CoE was cancelled for non-commencement of studies on 10 June 2015.  The decision record states that PRISMS also indicates that the applicant did not commence the Bachelor of Business course with AIH that was due to commence 27 July 2015.  His CoE was cancelled by AIH for non-commencement of studies on 10 August 2015.   The decision record stated that the applicant, according to the PRISMS records commenced a Diploma of Business course with the Sydney Metro College on 26 September 2016.  The applicant in oral evidence however to the Tribunal confirmed in oral evidence that after he paid fees and enrolled but subsequently did not attend any classes for this course and his enrolment had been cancelled.  The applicant conceded he had not been enrolled in a registered course since 2017.

21. The Tribunal notes that in over four and a half years the applicant has only completed a two-month course in General English over four years ago.  The decision record the applicant supplied states that the applicant in his response to NOICC in November 2016 stated that he had started a Diploma of Business at the Sydney Metro College, was feeling much better and was looking to study the Diploma and use those credits to transfer to a Bachelor of Business.  He asked for another chance to continue his studies and go home to Indonesia.  In oral evidence however the applicant stated he had not attended any of his classes for the Diploma of Business and his enrolment had subsequently been cancelled.  The applicant said he had no further enrolments. 

22. The applicant said in oral evidence he was instead working two to three days a week and sending money home to his parents in Indonesia.  The Tribunal accepts that working whilst studying is not an unusual situation.  The Tribunal however is of the opinion that on the evidence the applicant’s main focus appears to be his employment and his generation of income for his family offshore. 

23. The Tribunal notes the applicant’s claims in November 2016, as outlined in the decision record, that he was anxious and depressed after breaking up with his girlfriend and this led to a situation whereby he was unable to study.  The Tribunal nevertheless notes that in his response to the NOICC he stated that he was now feeling much better. Over two years later in oral evidence to the Tribunal he confirmed he had not sought any further medical or psychological treatment.  In oral evidence he said he gave up hope of getting a student visa again after the November 2016 cancellation.  The applicant apologised for not attending classes.

24. The applicant’s poor academic record, his lack of commitment to study and his extensive periods of non-enrolment over well over four and a half years weigh heavily upon the Tribunal. His explanations for his situation give the Tribunal little reason to believe he will commit to study and fulfil the purpose of his visa at any reasonable time in the future.   Given the applicant’s actions in failing to fulfil the purpose of his visa for a significant period of time, the Tribunal weighs this factor in favour of cancelling the visa.  On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia, it the Tribunal weighs this factor significantly in favour of cancelling the visa.

25. The Tribunal has considered the extent of the applicant’s compliance with visa conditions.

26. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his Higher Education Student visa by not either studying or being enrolled at a Higher Education Sector level course for a significant period of time since being granted his Student visa to be substantial.  Condition 8202 requires the applicant to remain enrolled in a registered course and maintain enrolment in a registered course that is the same level as, or at a higher level than, the registered course for which he were granted a visa.  It furthermore requires the applicant to maintain satisfactory attendance in his course and course progress for each study period as required by his education provider. Condition 8516 requires the applicant to continue to satisfy the requirements for grant of his student visa. The Tribunal considers the applicant’s non-compliance with such visa conditions to be considerable.  The Tribunal notes from the decision record the applicant supplied that since the grant of his visa the applicant has failed to complete any course of study at the 573 level and since returning to Australia on 23 February 2015 he did not study until he commenced the Diploma of Business course on 26 September 2016, some 19 months after his return.  Furthermore the Tribunal notes from the applicant’s oral testimony at the hearing, the applicant subsequently failed to attend the Diploma of Business course he commenced on 26 September 2016 and his enrolment was subsequently cancelled.  The Tribunal notes from the decision record of the delegate that the applicant had failed to complete any courses at the 573 Higher Education level prior to the NOICC being issued.  The Tribunal is of the firm view that visa holders are expected to both study, and study at the visa subclass level for which they were approved at the time of application. This has not been the case with the applicant.  On the evidence before it the Tribunal weighs this factor significantly in favour of cancelling the visa.

27. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his student visa be cancelled.

28. The Tribunal notes that the applicant failed to maintain the study plan he outlined when he applied for and was subsequently his Student visa.  His further enrolments, as discussed previously in this decision, were subsequently cancelled for non-commencement of studies up until the time of the delegate’s decision in November 2016.  The applicant in his oral evidence to the Tribunal confirmed his further enrolment in September 2016 in a Diploma of Business was also ultimately cancelled for a non-commencement of studies.  The applicant has no future enrolments in higher education courses at this time. 

29. The purpose of the applicant’s Student visa was to undertake study and achieve educational qualifications in Australia.  Notwithstanding his claims of depression and anxiety in 2015-2016, the Tribunal on the evidence is of the opinion the applicant has failed to make any significant commitment to his studies since completing a non-Higher Education course in General English over four years ago.  He has not completed any Higher Education courses, is not enrolled in a Higher education course and on the testimony he provided has no current plans to reenrol beyond vague statements that he would appreciate a further opportunity to recommence his study.   In oral evidence to the Tribunal the applicant said if he were to be compelled to return to Indonesia he would in all likelihood have to return to the workforce rather than study.  Given his failure to undertake and commit to study for such a considerable period of time since being granted the Student visa, the Tribunal considers there is little hardship to the applicant should his Student visa be cancelled.  The Tribunal weighs this factor in favour of cancelling the visa. 

30. The Tribunal has considered the hardship to the applicant’s family.  The applicant said he has no family in Australia.  He has no spouse or de facto partner.  The applicant in his oral testimony to the Tribunal spoke about his employment in a coffee shop.  He said every fortnight he would send money to his parents and worried about the impact upon them should he have to return to Indonesia and subsequently lose his employment in Australia. .  He said he has one other brother who lives with his parents but would not be able to effectively support their parents alone.  The applicant said if his Student visa was not cancelled he would be able to both recommence studying and continue to support his family financially.  The Tribunal accepts the applicant’s evidence that he currently sends financial support on a regular basis to his parents and has done so for some time.  Nevertheless the Tribunal notes that the applicant was granted a Student visa.  It is not an employment visa and it is not for the principal purpose of seeking employment in order to support offshore family members financially.  The Tribunal accepts there may be some financial hardship to the family in Indonesia but notes the applicant has the ability to seek further employment in Indonesia.  The Tribunal weights this factor in favour of cancelling the visa. 

31. 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 may 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 except in certain circumstances. 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 degree of hardship, the Tribunal weighs this factor in favour of cancelling the visa.

1. The Tribunal has considered the circumstances in which the ground for cancellation arose.  At the time of decision the applicant has not provided the Tribunal with any further written submissions concerning the circumstances in which the ground for cancellation arose.  The Tribunal has noted the reasons provided by the applicant to the delegate in response to the Notice of Intention to Consider Cancellation (NOICC) issued by the Department as outlined in the decision record the applicant provided the Tribunal. 

2. As outlined in the decision record the applicant supplied the Tribunal, the applicant in November 2016 provided a range of reasons regarding the circumstances in which the grounds for cancellation arose.  The applicant at that time conceded he had had about eighteen months study gap whilst in Australia and submitted this was because he had suffered depression and continuous anxiety during the aforementioned study period.  He submitted he had problems with literally everything and it stopped him from doing things that he usually does.  This period started after the applicant broke up with his girlfriend.  The applicant at the time stated that he now felt much better and had commenced the Diploma of Business course at Sydney Metro College.  The applicant expressed his deepest regret and apology for not being compliant with his visa conditions and stated he had started his Diploma of Business due to issues in re-enrolling in a Bachelor course.  He submitted that this was his best option and he intended to transfer from the Diploma of Business to a Bachelor of Business course.   

3. In November 2016 the applicant provided the Department with a medical report from a psychologist dated 8 November 2016.  The medical report claims to be a psychological assessment in regard to the applicant’s state of mental health from February 2015 until September 2016.  The medical report was based upon an assessment undertaken on 8 November 2016.  The medical report, as outlined in the delegate’s decision, stated that the applicant was presenting issues from study pressure and symptoms of depression brought on by the breakdown of his relationship with his girlfriend.  The report stated that the applicant was currently feeling anxious after receiving the NOICC from the Department and he was experiencing anxiety including loss of motivation and hopelessness.  The psychologist, according to the decision record, stated that the applicant was showing high levels of clinical depression and perhaps some symptoms of an adjustment disorder.  The applicant’s symptoms appeared to have developed, according to the psychologist, due to the applicant’s lack of ability to perform his course and his relationship breakdown.  Finally the psychologist recommended the applicant may have benefitted from further psychological intervention.  The Tribunal notes that the applicant submitted that his mental state and his feelings of anxiety and depression – as evidenced by this psychologist’s report - facilitated a situation where he was unable to study and maintain his obligations as the holder of a 573 Higher Education Student visa. 

4. The Tribunal at the hearing asked the applicant why he failed to maintain his enrolment.  The applicant said he had been feeling depressed and frustrated due to problems with his family and the breakup with his girlfriend.  He said he couldn’t focus on study.  

5. The Tribunal noted that the date of the psychologist’s report was after the applicant received the NOICC.  Given the claims made by the applicant and given the psychologist’s recommendation, as evidenced in the delegate’s decision, that the applicant may have benefitted from further psychological intervention, the Tribunal asked what further medical and psychological treatment the applicant had sought since November 2016 and the present day.  The applicant admitted that he did not see the psychologist again and seek any additional treatment.  He said he just had a bit of therapy and felt better.  The Tribunal asked the applicant what his mental and psychological status was like today.  He replied he felt better.  He said his friends had supported him to get better. 

6. The Tribunal noted the applicant in the NOICC in November 2016, as stated in the decision record, had said at that time he was feeling much better now and had commenced a Diploma in Business.  The applicant agreed that was the case.  He admitted that nevertheless he did not remain enrolled as he did not attend classes and he had eventually received an email stating his enrolment had been cancelled.  He said that he had become frustrated again and hadn’t known what to do.  The Tribunal asked the applicant why he didn’t remain enrolled and attending classes the past two years in the Diploma in Business.  The applicant said he gave up hope of getting a visa again and stopped attending.  He said he couldn’t remember exactly when that was. 

7. The Tribunal gives little weight to the applicant’s claim that anxiety and depression due to relationship breakdown and other factors led to an unavoidable situation whereby the applicant was in breach of the conditions of his visa.  The Tribunal notes that the psychologist’s assessment and report is dated after the applicant received the NOICC two years ago.  The Tribunal notes the applicant’s oral evidence that he had no evidence of any of these psychological issues prior to his submission of 8 November 2016 and having received the NOICC.  The applicant admitted in oral evidence that he had never seen a psychologist or sought treatment for such issues prior to the consultation with the psychologist on 8 November 2016.  The Tribunal notes that the applicant admits that he has not sought any further psychological or medical advice concerning his state of mind post the psychologist’s visit over two years ago. The Tribunal specifically asked at the hearing the applicant ‘Did you obtain this report to meet the visa requirements and negate the breach of your visa?’  The applicant conceded that he did. 

8. The Tribunal at the hearing noted to the applicant that according to the PRISMS records as outlined in the delegate’s decision, between August 2015 and September 2016 the applicant was not enrolled in a registered course and he was furthermore not studying between April 2015 and September 2016.  The applicant said that was the case he was not enrolled and the reason was he was depressed.  Given this, the Tribunal asked the applicant why he did not seek a further deferral for his study from the education provides beyond April 2015.  The applicant said this was because he was frustrated and didn’t know what to do.  He said he simply stopped attending his studies. 

9. The Tribunal is prepared to accept that the applicant felt down after his relationship with his girlfriend ended and accepts that study can be at times a stressful situation for all students.  The Tribunal acknowledges the psychologist’s report from 8 November 2016 but notes that the applicant has conceded in oral evidence that he never sought any psychological or mental health treatment either before that assessment on 8 November 2018 or in fact after that assessment.   The Tribunal notes that the applicant conceded at the hearing that he obtained the report specifically for the purposes of seeking to meet his visa conditions and negate the significant breach of his Student visa conditions.  The Tribunal acknowledges the psychologist’s reports and the recommendations.  Ultimately however the Tribunal gives no positive weight to the applicant’s claims concerning his depression and anxiety as the circumstances in which the ground for cancellation arose and does not consider the limited medical evidence submitted mitigates the significant breach of the visa conditions that continues to occur today.  Given the lack of any other corroborative evidence submitted in support of these claims of depression beyond the initial psychological assessment report, and given the applicant’s oral submissions that he ‘felt better’ by the time of commencing a new course in September 2016 – and his concession he has not sought any further treatment since that initial psychologist’s report – the Tribunal gives the claims of depression and anxiety little positive weight in favour of the applicant when considering whether the visa should be cancelled.   The lack of corroborative evidence in relation to this claim leads the Tribunal to give little weight in favour of not cancelling the visa.

10. The Tribunal asked the applicant whether he was currently enrolled and held a CoE.  He said he was not and wasn’t sure when he was last enrolled.  The Tribunal notes that the conditions of a 573 Higher Education Student visa state the visa holder must continue to be a person that would satisfy the primary or secondary criteria for the grant of the visa at the time of decision: Condition 8516.  The applicant in oral evidence to the Tribunal said he had not enrolled in any other courses since receiving his cancellation two years ago.  He said he does not have any future enrolments.  Given the applicant is not currently enrolled in a registered course of study, has not explained to the Tribunal’s satisfaction the reasons as to why he is not and has not been for many months both before and after receiving the NOICC in 2016, the Tribunal does not consider the applicant a genuine student.  The Tribunal weights this factor in favour of cancelling the visa.

11. The Tribunal considers the applicant was well aware of the consequences of non-compliance with the terms of his Student visa.   At the hearing the Tribunal asked the applicant if he received a letter from the Department when he was granted the visa.  The applicant agreed that he had and the letter outlined the conditions of the visa and the consequences of non-enrolment.  The Tribunal asked the applicant if he knew the consequence of not maintaining enrolment in a registered course was that it would impact upon his eligibility to continue to hold a Student visa.  The applicant admitted that he knew this was the case.  The Tribunal recognises the applicant’s candour and honesty in conceding these points but nevertheless weights this factor in favour of cancelling the visa.   

12. The Tribunal at the hearing noted that, given the applicant’s claims concerning his state of mind in 2015 and 2016, whether he approached his education provider at the time to request a further extension to his earlier period of compassionate leave in early 2015.  The applicant said he did not.  The applicant in oral evidence said he also did not contact the Department to inform them of his change in circumstances or make inquiries in relation to any consequences of non-compliance.  Given his claims as to why he failed to attend class for such a significant period of time leading to cancellation of his enrolments, and his comments at the hearing that he was aware of the possible consequences of non-compliance, the Tribunal finds it difficult to understand why the applicant did not make any attempt to contact the Department of his education provider to inform them of his circumstances and seek counsel on what may be the consequences of non-compliance.  The Tribunal weighs this factor in favour of cancelling the visa.      

13. The Tribunal 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.  This includes being aware of any conditions such as condition 8516 which required that the applicant continue to maintain enrolment in a Higher Education Sector level course whilst they hold the visa.  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.  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 well over a year would have an impact upon his eligibility to continue to hold his student visa.  Similarly, the Tribunal considers the applicant would have been aware of Condition 8202 which requires the applicant to remain enrolled in a registered course and maintain enrolment in a registered course that is the same level as, or at a higher level than, the registered course for which he were granted a visa.  It furthermore requires the applicant to maintain satisfactory attendance in his course and course progress for each study period as required by his education provider.  Given the applicant was a direct party to their enrolment, the Tribunal is of the opinion that on the evidence the applicant would have been well aware that they were failing to meet such conditions of their Student visa.  The applicant in fact confirmed in oral evidence that he was aware he was not meeting the conditions of his Student visa and confirmed that he did not contact the Department to inform them of the change of their circumstances as he was obliged to do so.   On the evidence before it concerning the ground for which the cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa. 

14. The Tribunal has been mindful of the applicant’s oral submissions at the hearing and his previous written submissions to the delegate in relation to the circumstances in which the ground for cancellation arose.  The Tribunal considers the breach of the applicant’s visa conditions to be significant and the justifications, much of the evidence provided and explanation for such circumstances to be shallow, unconvincing and fails to mitigate the breach of these visa conditions.  The Tribunal acknowledges the psychologist’s report from two years ago but given the applicant’s concession that he has never sought assistance pre or post the November 2016, gives his claims of depression and anxiety as justification for breach of conditions very limited weight.   On the evidence before it the Tribunal is of the firm view that the applicant is not, or is not likely to be a genuine student.      

15. 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. 

16. 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.

17. 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 any cancellation would result in any breach of Australia’s international obligations.  On evidence, the Tribunal finds that the circumstances in which the ground for cancellation arose was not beyond the applicant’s control and weighs this in favour of cancelling the visa.

18. On the evidence before it the Tribunal is of the firm view that the applicant’s primary purpose for holding a visa was not for the purpose of study and he was not, or likely not to be, a genuine student.  The grounds for cancellation have been clearly made: the Tribunal notes that over a period of more than four and half years the applicant has only successfully passed a two-month General English course over four years ago.  He has never on the evidence before the Tribunal successfully completed a 573 Higher Education visa course.  The decision record he supplied states that, according to PRISMS records, the applicant did not study between his return to Australia in February 2015 until enrolling in a Diploma of Business in September 2016: a course he admitted to the Tribunal was cancelled due to his non-attendance and non-commencement of studies. The applicant has stated he wishes to study but the evidence before the Tribunal is the applicant’s stronger desire to remain in Australia is for employment-related purposes and to generate income to send to his family in Indonesia.  The Tribunal has carefully considered relevant factors for not cancelling the visa that have been put forward both to the delegate two years ago in response to the NOICC as well as to the Tribunal at hearing.  The Tribunal has determined on the basis of the information before it that the visa should be cancelled. 

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

    DECISION

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

    Justin Owen
    Senior Member

    
    

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

    …

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

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

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

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

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

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