Jadav (Migration)

Jadav (Migration) [2020] AATA 3890 (27 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Arun Jadav
CASE NUMBER:  1802048
HOME AFFAIRS REFERENCE(S):          BCC2017/3824465
MEMBER:Genevieve Cleary
DATE:27 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 27 June 2020 at 6:07pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – non-payment of fees – no release letter from previous university – applicant changed courses – management studies to establish a small hospital in India – application for a Government scholarship – applicant’s efforts to re-enrol at education institutions – decision under review set aside
LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 19 January 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector 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 not complied with a condition of the visa, being condition 8202. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 14 October 2019 and 26 June 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Vipin Chauhan on 14 October 2019. The Tribunal hearings were conducted with the assistance of an interpreter in the Hindi and English languages.
The applicant was represented in relation to the review by his registered migration agent.
Prior to the 14 October 2019 hearing the applicant provided to the Tribunal:
·The Decision Record of the delegate;
·A statutory declaration dated 1 October 2019;
·Invoices from Priority Medical Centre showing an attendance by the applicant on 8.12.2017 for after hours medical care and 11.12.2017 for a clinical psychologist consultation;
·Copies of prescriptions dated 8.12.2017 for Panadol Osteo, Voltaren and Avanza;
·A letter from Caspian Clinical Psychology Services dated 22.12.2017.
As is explained below, the hearing on 14 October 2019 was adjourned after some evidence had been given. The applicant was given 21 days after that hearing to provide to the Tribunal any documents he had not already provided.
On 22 November, so more than 21 days after the first hearing before the Tribunal, the applicant sent to the Tribunal:
·A statutory Declaration signed by the applicant on 22 November 2019;
·Letter of Offer and Acceptance for the Diploma of Leadership and Management at Austech Business Institute dated 29 May 2017;
·A letter from Caspian Clinical Psychology Services dated 22.12.2017, which had already been received;
·A request for a scholarship dated 25 October 2017, and
·Australian Government Department of Education and Training 2018 Standard 7: Overseas Student Transfers and Standard 9: Deferring, suspending or cancelling the overseas student’s enrolment.
At the request of the applicant, the continuation of the hearing was listed for 26 June 2020. Prior to the hearing in June 2020, the applicant sent to the Tribunal:
·Payslips for the applicant’s position at McDonalds Merimbula and a letter confirming the applicant has been employed there from 19 September 2019 to the present, dated 18 June 2020;
·Westpac Bank statements;
·Payslips for the applicant’s position at Merimbula Lakeview Hotel;
·Term deposit statement dated 20 June 2020;
·Explanatory Statement, National Code of Practice for Providers of Education and Training to Overseas Students 2018;
·National Code of Practice for Providers of Education and Training to Overseas Students 2018;
·National Code of Practice for Providers of Education and Training to Overseas Students 2017;
·Submissions from the applicant’s representative dated 25 June 2020.
In his letter to the Tribunal dated 25 June 2020 the applicant’s representative said that he had supplied the Tribunal with the Australian Government Department of Education and Training 2017 Standard 13. He has not. However, rather than ask the applicant to contact his representative, who did not appear at the hearing, to send the document, I told the applicant that as the Standard was a public document, I would locate that document myself through an open source and review it, in light of the representative’s submissions. I have accessed that document and reviewed that Standard.
The Tribunal has also had regard to the Department file.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 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?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course. At the commencement of the hearing on 14 October 2019, when specifically asked, the applicant agreed that at the time of cancellation he was not enrolled in a registered course. He explained that his enrolment at Charles Darwin University had been cancelled. The delegate’s Reasons for Decision say that the applicant’s course was cancelled for failing to pay fees on 11 April 2017. The applicant’s Student visa was cancelled on 19 January 2018.
However, when the applicant began explaining why his enrolment was cancelled, he gave evidence that suggested that he was in fact enrolled at the time of his cancellation; he said that he was enrolled at Austech Business Institute to study a Diploma of Leadership and Management, to commence on 5 September 2018, to run for over a year (66 weeks). He said that he signed the offer letter on 29 May 2017.
The applicant said that he had sent the letter of enrolment to his lawyer, and told him to send it to the Tribunal. I told him that the Tribunal had not received it. He did not have a Confirmation of Enrolment.
I obtained a copy of the Provider Registration International Student Management System (PRISMS) record, and told the applicant that, based on what is in that record, it appeared that his last enrolment was the Masters of Business Administration at Charles Darwin University, which was cancelled in May 2017.
I told the applicant that the PRISMS record showed that the applicant was enrolled as follows:
a.Master of Business Administration (Professional Practice), commencing July 2016, at Charles Darwin University in Melbourne, and
b.Master of Business Administration (Professional Practice), commencing February 2017, at Charles Darwin University in Sydney.
Further, the PRISMS record showed that on 5 May 2017 the enrolment was cancelled for non-payment of fees. More importantly, I told the applicant that the PRISMS record showed that he had had no further enrolments since the cancelation by Charles Darwin University in May 2017.
I told the applicant that the lack of enrolment was different to what he had told me originally, and that the information about his enrolment related to the question of whether he was enrolled at the time of the cancellation of the Student visa, being the threshold question the Tribunal must address. The PRISMS record showing that he was not enrolled from May 2017, that threshold question may be answered “no”. I also told him that that I considered that that information, and that answer, would be the reason, or part of the reason, for affirming the decision that is under review pursuant to s 359AA of the Act.
When I explained to the applicant the contents of the PRISMS record, the applicant agreed that while there had been at least one letter of offer from another university, he had not been able to take up any offer because he had never received a release letter from Charles Darwin University. He agreed that he was not enrolled in any course at the time of the visa cancellation.
In accordance with s 359AA of the Act I asked the applicant if he required an adjournment to respond further to the information in the PRISMS record. I told him that he could have an adjournment to re-constitute the hearing, or that he could have an adjournment to write to the Tribunal with any further information he thought was necessary to clarify the question of enrolment. The applicant said that “Actually that’s it, I don’t have any further information. Please give me a chance to enrol to continue my studies. It will be very helpful for me to continue my studies. It will help for me for my future.”
I asked him whether that meant that he did not want an adjournment. He said “I do wish to adjourn this, as I do wish to present all other issues as well.” “I want to continue my studies, so that is why I need another ... I wish to discuss how important my studies are for me, and not only for me and also for my future and also I want to try to get ahead in my studies and my education and I want to discuss that.” I confirmed that I understood that:
a.His studies were very important to him;
b.That he would like another opportunity to continue his studies in Australia.
Despite the applicant saying he understood that I understood this, he also said that he wanted to come back on another day to explain more matters to the Tribunal. Accordingly, I granted the adjournment. I reiterated to the applicant that any information provided as a result of the adjournment should be information that the Tribunal does not yet have. He said that it will be “documents that he has not yet submitted about his visa and the cancelation.” I asked him that he send all of the documents that he wanted the Tribunal to consider in addition to what he had provided within 21 days. He agreed that he would. He said that there were one or 2 documents that were missing, and he would send them in within 21 days.
At the resumption of the hearing on 26 June 2020 I summarised the evidence that the applicant had provided at the last hearing, and the new material I had received from he and his representative prior to this hearing. I told him that I was of the view that nothing he had supplied after the adjourned hearing changed my view that he was not enrolled at the time of the cancellation. He agreed that there was nothing he had sent that showed that he was enrolled at the time his Student visa was cancelled, and he agreed, again, that he had not been enrolled at the time of the cancellation of the visa.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
Consideration of the discretion to cancel the visa
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. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant came to Australia to study because he wanted to pursue a Masters of Business Administration. He was a good student in India, but there were limited places to pursue that course in India and he did not get a place, so he decided to come to Charles Darwin University.
He wanted to complete an MBA to be a good manager. His undergraduate degree was in pharmacy. He wants to build a small hospital in India and therefore needs a background in business administration. He lives in a small regional area without good medical services. He wants to improve the health of the area. The government will give him 50% of the funds. The rest will come from his family. They will mortgage properties and finance other loans.
If his visa is granted he said that he will complete his MBA, and he feels now he has enough experience in the ways of a big Australian city – he will move back to Sydney, although even Merimbula has good colleges, and he has also looked at colleges closer to Merimbula or with offerings online. He will leave Australia once he completes his MBA.
The Tribunal accepts that the applicant had a compelling reason to come to Australia to study; a Masters of Business Administration appears to have some value to the applicant’s future plans, and there is nothing before the Tribunal to suggest that the applicant’s situation is different to his evidence that he was not able to gain a place in an MBA course in India. In any event, it is reasonable for a person to want to gain a postgraduate qualification in another country. It is also reasonable that the applicant wants to remain in Australia to continue his studies. Having carefully considered the applicant’s response and the other evidence before me, I am willing to accept that he initially came to Australia to study, and I give this some weight in his favour.
The extent of compliance with visa conditions
The applicant has not applied for any visas in any other countries. He has not had any visas cancelled or refused here or elsewhere.
He has been working in Australia. In Melbourne he worked for 2 days a week at a bakery. He felt that was not a good job option. When he moved to Sydney the job options were restaurant jobs as waiters and kitchen hands. He was also looking at jobs in a warehouse. He took the kitchen hand, waiter and a warehouse employment. He was doing the waiter job at the same time as the warehouse job, although sometimes this changed according to what was required. In March 2017 he was working 20 hours per week. He was studying 3 days a week, and a 4^th day he used to complete assignments. The rest of the time he worked.
When his enrolment was cancelled he did not work for one year. He moved to Merimbula in about June or July 2018. He said he is working 20 hours per week. In 2019 he was living in Merimbula, managing an Indian restaurant, and had been doing so for about 18 months. By the time of the hearing in June 2020 the applicant had left that restaurant and was working at both McDonald’s and a hotel in Merimbula.
If his visa is granted he said that he will complete his MBA, most likely in Sydney, and thereby comply with the visa conditions.
There is nothing before the Tribunal to suggest that the applicant has not complied with other conditions on his visa. However the Tribunal expects that all visa holders adhere to the conditions on their visa and as such the Tribunal gives this factor no weight in favour of the applicant and not cancelling the visa.
The length of the breach is relatively lengthy. The applicant’s course was cancelled in April or May 2017. The Notice of Intention to Consider Cancelation was sent to the applicant in November 2017, with the cancellation occurring in January 2018. Therefore, the applicant was in breach, until cancelation, of about 7 months, during which time he had not gained a further enrolment. Having carefully considered all of the information before me, including the reasons for the lengthy period of non-enrolment, discussed elsewhere in these reasons, I consider the breach of condition 8202(2) here is relatively significant, having been for a long period. However, given the reasons for the breach, and the difficulty the applicant had in gaining a new enrolment, discussed elsewhere in these reasons, I give the breach of condition 8202 only limited weight towards the visa being cancelled.
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
The applicant came to Australia to study at Charles Darwin University, enrolled in an MBA. He arrived in Australia in July 2016 and commenced his course in Melbourne. In July 2016 he paid $13,000 to the university in Melbourne for that semester. He enrolled in and completed 4 subjects. The subjects were organisation behaviour, decision making, international marketing and leadership. He finished the first semester, having passed all the subjects. The second semester was to commence March 2017. He transferred to the university campus in Sydney. He wanted to get a job in Sydney, and had friends there. He was not comfortable in Melbourne.
Prior to coming to Australia the applicant had applied for a Government scholarship through the Indian government. By the time he left to come to Australia he did not know whether he had received the scholarship or not, however, because he had received the enrolment and he had sufficient funds to pay for the first semester, he did so. He assumed that the scholarship would be forthcoming by the time he came to pay the fees for the second semester. When he moved to Sydney he had still not heard about the scholarship. Accordingly, he did not have the funds to pay the fees as required.
He enrolled in second semester at the university in Sydney and commenced 2 classes. The university in Sydney were asking for $9,000 for the semester. He had enrolled in only 2 subjects. He had wanted to go slowly. The university had asked him if he wanted to enrol in 2 or 4 subjects. He decided to only do 2 subjects because one of his friends studying with him was only doing 2 subjects too. Sydney was a new place for him, and he had some job options, so he wanted to only go slow. He wanted an extension to do so, and was given that extension for one month.
The university gave him a bill for $9,000 after he enrolled. He enrolled at the start of March. After 10 days they sent an email, asking him to pay. By this time he had attended about 2 weeks of classes. The applicant replied and asked for time to arrange funds. He then met with a student adviser the next day after he asked for more time. The student adviser told him that he could not get more time because it had got to the point in the semester that it was too late to do so and that I’m less you could pay the funds in full, his enrolment would be cancelled. The applicant asked for 2 weeks to arrange funds, and offered to pay $6,000 after that time, and the remainder shortly after that, but he was told that was not possible either.
He then also asked the university, by email, not to cancel his enrolment, and offered again to pay the $6,000 soon after that. Again, they refused. He could not afford to pay, so he asked for an instalment plan. He asked some friends what to do, and he felt he was not guided by the university. They told me to defer and go back to India and organise funds. However, the university also declined to enter into a payment plan.

He applied for a deferral from the university, because the university, he felt, were not assisting him in sorting out his problem with the fees. The university agreed for him to defer for 6 months, however, they wanted him to pay the fees to do so.
Contrary to what was suggested to him, he did not go back to India. The applicant reiterated that he felt that the university did not understand his problems, and did not guide him adequately. The applicant said that he felt that he could not go back to India because it would alert his family to the fact that he was having difficulties with the education system in Australia. He said his family would have been sad to know that.
The applicant supplied a document to the Tribunal which appeared to be acknowledgement of either the existence of your request for a scholarship in India. It does not say how much the scholarship was in funds. However, the document had a date on it of 9 October 2017. I asked the applicant when he applied for the scholarship. He said he applied before he left. I pointed out to him that the document appeared to be dated 9 October 2017. He said that he told the government that he needed the money to enrol in another university in about October 2017. I pointed out to him that that meant that he had asked for the funds well after his enrolment was cancelled. He said the document he provided to the Tribunal was a request letter from his father to the state government. He told the Tribunal that by that time, he had told his father of his difficulties and his father had agreed to help him.
He said that before that he had been emailing the government, but they were not responding. He had even sought the assistance of his local member. Because he had originally applied for the scholarship online, he did not have any documents to provide to the Tribunal to show that he had in fact so applied. Neither did the applicant provide any of the emails he said he sent chasing up the scholarship.
Had the scholarship come through, he would have received $40,000 which was to be 3 semesters. He never received the money, so he has asked his father for money. He did not ask for help from his family at the time, because they had sent him to Australia. When he was under pressure to pay, he was under depression, and he felt he could ask for help. When he told his father, his father offered to help. His father has now supplied him with about $39,000. The applicant also now has some savings so he can pay any further fees required.
As a result of the difficulties the applicant had with Charles Darwin University, he fell into depression.
He found out from Charles Darwin University on 5 May 2017 that his enrolment had been cancelled due to non-payment of fees. He was shocked and upset that the university had not contacted him and attempted to work it out with him.
He said he was shocked, he was a good student in India, and had chosen that University because he felt he would get a good degree from them. He is clearly upset with the University and seems to feel it was their fault that his enrolment was cancelled, and that they had not warned him.
The day after he found out his enrolment had been cancelled he went to another University to get a new enrolment. This was the Federation University. He was looking to continue studying the MBA there. The applicant said that University wanted a ‘release’ letter and confirmation that he had passed semester 1. Charles Darwin University did not send him anything, which he thinks is most likely because he had not paid the fees. As a result of not being able to obtain a release letter and confirmation of his achievements in semester 1 the Federation University could not enrol him.
He feels that the scholarship funds then were not forthcoming because the Indian government were aware that his enrolment had been cancelled. He said that the University had tortured him mentally. He knew his parents and friends would be annoyed and disappointed in his progress. He could not enrol at the Federation University because he did not have a release letter from Charles Darwin. He could not therefore enrol anywhere. He fell into more of a depression.
After his visa was cancelled he went to counselling some time later. He said that the depression grew on him day by day. After 6 months a friend told him that he should see a doctor. He saw the doctor 3 times towards the end of 2017 and the doctor diagnosed depression. He also went to another hospital and had been provided with some medication. His parents were pushing him not to stress. Once they found out what was going on they have been very supportive, but are urging him to pursue his studies in Australia, which he wants to do. He has been prescribed and at the time of the hearing in October 2019, was still taking the anti-depressant medication.
He was also prescribed some Panadol Osteo and Voltaren. At that time he was not keen on taking any medicines, but his family urged him to reconsider. He said that his doctor suggested that he take them. He could not work, he could not talk to his family. He also has heavy back pain, and that is the reason he was given Panadol Osteo and Voltaren.
His depression symptoms started to get better after he saw the doctor. He followed the doctor’s suggestions, and got better day by day.
The applicant’s friend gave evidence at the October 2019 hearing. He has known him for about 2 years. When his visa was ‘in trouble’ he was not able to help him. He was struggling to find accommodation, and had difficulty with other matters which the witness did not expand on. He felt that the applicant did not have any support. He was aware that he was struggling in relation to his finances, and he felt that he should be given another chance. In 2017 the witness was in Queensland, having now been in Australia for 6 years. He met the applicant at the start of 2017, and he moved to Queensland shortly after, and they were in contact regularly and he told him about what he was going through. He will be supporting him.
The applicant said that if he continues his MBA course he can now afford to pay the fees, as he has been working and has savings. Prior to the June 2020 hearing, the applicant provided to the Tribunal a number of payslips showing that the applicant has regular work. He says that that shows that he is able to afford the fees. He also provided some bank documents showing his current bank balances and access to funds.
I have considered carefully all of the evidence the applicant gave at both hearings as well as all of the documents that have been sent at various times to the Tribunal in support of the applicant’s application for review. It seems that the applicant is of the view that Charles Darwin University did the wrong thing by cancelling his enrolment. His representative has suggested that the university failed to comply with a number of relevant Australian government standards in providing opportunities to and taking care of international students. However, in my view that is not the cause of the original cancellation.
However the university went about cancelling the applicant’s enrolment, the applicant has admitted that he was unable to pay the semester two fees. While the applicant has supplied or referred to the Australian government standards and given a verbal account of what occurred in his negotiations, the applicant has not provided to the Tribunal any emails or other documents that passed between himself and the university or himself and the Indian state government in relation to the scholarship, and has given evidence in very general terms about the conversations he had with the university. He has not provided any information about time limits as to when the fees were to be paid originally and whether he in fact breached those time limits. Given I have not been given any information by the applicant that goes to the time limits for payment of fees, it is reasonable to assume that the applicant is not saying that the university called for the fees prior to when the regulated time limit would allow. It is entirely his own responsibility to either negotiate in a timely manner or pay the fees. The applicant availed himself of student counsel and therefore it cannot be said that the university rejected him outright, failed to discuss the situation with him or failed to provide any assistance to him. Without more information about when the fees were to be paid and the rules set down by the university as to the manner in which they negotiate, the Tribunal is not in the position to make a finding that the university acted unreasonably and did not provide the applicant the requisite time to pay the fees or any enter into any regulated negotiations.
As a result, the Tribunal is not prepared to find that the university was the cause of the Student visa cancellation. It seems that the non-payment of fees was, ultimately, the cause of the Student visa cancellation, and that resulted in the university withholding its release letter which appears to have caused the applicant difficulty in immediately re-enrolling elsewhere. Whether the applicant feels he was not well treated in the manner in which the university went about enforcing their rules is not relevant to the considerations of whether the Student visa should remain cancelled.
However, the reason for the non-payment of the fees is a relevant consideration. The applicant has told the Tribunal that he applied for a scholarship prior to coming to Australia. He came with sufficient fees to pay his first semester and then was hopeful that the fees for the remaining semesters would be forthcoming once he had arrived in Australia. While, despite the applicant’s description, the Tribunal is still unclear as to the purpose of the document dated 9 October 2017, there is nothing before the Tribunal that suggests that the applicant did not seek a scholarship prior to him arriving in Australia or that he should not have believed that the funds would be forthcoming at some point and in time to pay future fees.
Accordingly, while the non-payment of the fees is the applicant’s responsibility, the Tribunal cannot be satisfied that he did not believe, when he came to Australia, that he would not be able to pay future semester fees. Therefore, the non-payment of the fees, to some extent, was out of the applicants control and cannot weigh against him.
Given that finding, and weighed with the efforts the applicant made to reenrol at education institutions once his enrolment at Charles Darwin University was cancelled, his efforts to rectify his depression which occurred because of the enrolment cancelation, and the fact now that he has sufficient funds to cover the remainder of his semesters, the Tribunal finds that, in its discretion, the applicant should have the opportunity to continue his studies, and this weighs against the visa not being cancelled.
There is no suggestion that the cancellation is as a result of relationship breakdown or domestic violence and therefore that consideration is not relevant.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant’s father and mother are still alive, and he has 3 sisters. 2 are married, so only one lives at home. The applicant said that his family would be disappointed and sad if he returned without a qualification, and that they are supportive of him staying.
He also said that it will be hard for him to find a job if he does not return with a certificate. That factor is relevant, and no doubt a practical consequence of returning home without a qualification. The Tribunal accepts that the cancellation of a visa is disappointing and that a significant amount of money is invested in a person in order to set them up in a country to live independently in order to study. The Tribunal gives this consideration a little weight towards the visa not being cancelled.
Past and present behaviour of the visa holder towards the Department
The applicant responded to the Notice of Intention to Consider Cancellation although it appears he did not provide all of the information to the Department that he has supplied over time to the Tribunal. There is no other evidence that the applicant has been uncooperative with the Department or with Department staff and the Tribunal gives this consideration some weight in his favour.
Whether there would be consequential cancellations under s.140
There are no other people associated with the visa and as such this factor carries no weight in the Tribunal’s considerations.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the current visa is cancelled, this will result in the following:
a.The applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.The applicant will have limited options to apply for further visas in Australia;
c.The applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where he will not be eligible to have any temporary visa application approved if he applies for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration in favour of the applicant because:
·These are the intended consequences of the legislation when a visa is cancelled under these grounds;
·It reflects the seriousness with which the Department takes this type of cancelation ground;
·The applicant will be eligible to apply for a bridging visa while he makes arrangements to depart Australia and therefore the likelihood of detention is only in the event that he does not co-operate in applying for a bridging visa.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
This is not relevant to the applicant.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This is not relevant to the applicant.
Any other relevant matters.
I am satisfied that there are no other matters that are relevant for consideration.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Genevieve Cleary
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(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.

[2020] AATA 3890

27 June 2020

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

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