Jashanpreet Singh (Migration)

[2020] AATA 3412

Jashanpreet Singh (Migration) [2020] AATA 3412 (20 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jashanpreet Singh

CASE NUMBER:  1932514

HOME AFFAIRS REFERENCE(S):          BCC2019/3200866

MEMBER:Michael Biviano

DATE:20 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 20 August 2020 at 5:25pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled at lower level than visa requirement – original enrolments at bachelor level cancelled – study and personal difficulties and mother’s illness – enrolment in certificate and diploma courses – told that college would arrange another institution to provide confirmation of enrolment at original level – college closed without providing record of completed studies – re-enrolment in same courses at second college – discretion to cancel visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359A
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(b)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 November 2019 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).

2. The delegate cancelled the visa on the basis that the applicant had not complied with subclause (2)(b) of condition 8202 of his visa as he was not enrolled in a registered course at the same level, or a higher level, than the registered course in relation to which the visa was granted. 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 11 May 2020 to give evidence and present arguments. 

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 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?

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

   ·must be enrolled in a full-time registered course: 8202(2)(a);

   ·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: 8202(2)(b);

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

7. In the present case, the applicant’s visa was cancelled on the basis the applicant was in breach of subclause (2)(b) of condition 8202 of his visa as he was not enrolled in a registered course at the same level, or a higher level, than the registered course in relation to which the visa was granted, for the period from 29 March 2018 to the cancellation of the visa on 8 November 2019, being a period of more than 19 months.

8. The decision record of the delegate of the Department of Home Affairs on 8 November 2019 confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa, which was granted on 1 February 2017, and gives the reasons for the cancellation of the visa (Decision Record).

9. The Decision Record was not provided to the Tribunal by the applicant.

10. In accordance with its obligations pursuant to s.359A of the Act, on 15 June 2020 the Tribunal sent a letter to the applicant enclosing a copy of the Decision Record, explaining to the applicant the relevance of the record to the review and the consequences of it relying on the information contained in the record. The letter invited the applicant to comment as to the matters raised in the decision. The letter relevantly provided:

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·     The Tribunal received a copy of the Decision Record of the delegate of the Department of Home Affairs dated 8 November 2019.  

    ·     The Decision Record confirms that:-

    o   You were granted the Student (subclass 500) visa on 1 February 2017 and your visa cancellation date was 9 November 2019;

    o   You arrived in Australia on 18 February 2017;

    o   Your visa which granted in relation to the following course - Bachelor of Business (Accounting) at Holmesglen Institute with a start date of 20 February 2017 and an end date on 31 December 2019;

    o   The highest Confirmation of Enrolment (COE) in relation to the visa granted was a Bachelor of Business (Accounting), which once completed would provide a Level 7 (Bachelor Degree) qualification from the Australian Qualifications Framework (AQF);

    o   Information available to the Department in the Provider Registration and International Student Management System (PRISMS) record obtained by the delegate confirmed that on 21 July 2017 the enrolment in the Bachelor of Business (Accounting) course was cancelled by the education provider citing that the Student left provider-transferred to course at another provider;

    o   The PRISMS record indicates that on 27 July 2017, you obtained an enrolment in Bachelor of Professional Accounting (AQF Level 7 – bachelor degree) at Holmes Institute, but this enrolment was cancelled on 29 March 2018 by the education provider citing that the Student left provider-transferred to course at another provider;

    o   On 15 April 2019, you obtained enrolment in the following courses through Skilled Services Australia Pty Ltd:-

    §Certificate III in Light Vehicle Mechanical Technology;

    §Certificate IV in Automotive Mechanical Overhauling; and

    §Diploma of Automotive Technology.

    o   The highest course level you were enrolled in at the time of the Department’s decision was in relation to the Diploma of Automotive Technology was at AQF Level 5 (Diploma).

    o You did not comply with subclause 2(b) of condition 8202 at the time the NOICC was issued as you did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which your visa was granted. Based on that information there appeared to be grounds for cancelling your visa under section 116(a)(b) of the Migration Act 1958 because you did not comply with condition 8202;

    o   The purpose of the student visa is to enable the visa holder to study and obtain the qualification at the bachelor level and you have not maintained the enrolment at the required AQF level for a period of 19 months;

    o   You provided for the following reasons for the cancellation of your visa:-

    §You claimed that you decided to another education provider in Brisbane because you struggled to understand the subjects and subject matter and you knew no one in both Melbourne and Holmesglen Institute in your first Bachelor course;

    §You stated that you were not progressing well in your second Bachelor course so you sought help from student services and you were advised to consider your options as per their belief that you not ready for the level of education at Bachelors level;

    §You decided to consider taking a technical trade at a college;

    o   You provided the following reasons in response to the NOICC why the visa should not be cancelled:-

    §You were unable to progress well in your studies in the bachelor’s course due to the pressures of studies, home sickness and having to support around. You struggled to understand and grasp the knowledge required to complete the subjects in that course successfully;

    §You went through mental stress due to your mother being sick and you being so far from your family and you felt helpless to share the burden at that hard time;

    §You went to India in January to see your mother who was sick and it contributed to your poor performance and delay in the processing of COE and offer for higher education studies;

    §You were assured by New England College that if you continued your studies you should be fine and your conditions will not be breached, as you were a continuing student and later you will be able to continue to degree level qualification;

    §You believed your education provider who told you that “they can arrange same from me from their partner institutions but I have to start course with them” and “leave degree program’s COE on them only to secure for me”;

    §You were later told that they could not get the COE as the institution they were dealing with was not providing COE’s to their students;

    §You stated it was difficult to get admission with another education provider as you could not get any of the results from New England College for the studies that had been finished and assessments that had been submitted;

    §You believe the only time you were in breach of the visa was during the time that you relied upon the education provider’s advice;

    §You were working on a COE for a Bachelor’s degree and you will and can provide the same to the Department, if they allow you to complete your education;

    §You stated that the Department’s decision would not only decide your future plans but also be affecting your family and their efforts to send you to Australia and the financial assistance they have provided to you in Australia.

    o   If you were unable to progress well at the higher education level and you were aware that you would be in breach of your visa condition if you did not obtain a COE at AQF level 7, then you had the option to apply for a new student visa at the Vocational Education sector to remain complaint with you visa condition;

    This information is relevant to the review because it confirms that you were in breach of condition 8202(2)(b) attached to the visa for the period from 29 March 2018 until the cancellation of the visa on 8 November 2019, for not being enrolled in a registered course of study that once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or a higher level than the registered course in relation to which the visa was granted. In your case if you were not enrolled in a course at the level of at least AQF Level 7 for the period from at least 29 March 2018 to 8 November 2019 and you have breached that condition of the visa, then the visa may be cancelled pursuant to section 116(1) of the Migration Act 1958. Further that information is relevant to the Tribunal exercising its discretion to either affirm or set aside the cancellation the visa having regard to the matters raised by the applicant and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

    If we rely on this information in making our decision, we may determine in relation to your review that you were in breach of condition 8202(a) attached to the visa for not being enrolled in registered course at AQF level 7 or higher from 29 March 2018 to 8 November 2019 and that based on the matters raised and the matters in the Departments Procedures Advice Manual (PAM3), the Tribunal may exercise its discretion to affirm the delegate’s decision to cancel the visa.

    These reasons would be the reasons, or substantial part of the reasons, for the Tribunal to affirm the decision under review to cancel your student visa. 

    You are invited to give comments on or respond to the above information in writing.

11. The applicant did not respond to, or make comment on, those matters pursuant to the invitation of the Tribunal.

12. The applicant at the hearing gave evidence that he completed year 12 in India in 2016. Between March 2016 and February 2017, he studied IELTS, and then on 1 February 2017 he obtained the Student (Subclass 500) visa. As part of the visa he undertook to study the Bachelor of Business (Accounting) at Holmesglen Institute, commencing on 20 February 2017 and concluding on 31 December 2019. The bachelor’s degree was a level 7 qualification under the Australian Qualifications Framework (AQF).

13. The applicant gave evidence that he understood his obligations under the visa to maintain enrolment in a course at level 7 of the AQF.

14. The applicant claimed that he studied the first semester at the Holmesglen Institute and undertook four subjects in the first semester and failed all four subjects. The academic results provided by the applicant for the first semester do not reveal the extent of his performance in that course.

15. The applicant claimed in evidence that he performed poorly for various reasons, including that it was his first time away from India, he was alone in Melbourne, and he was homesick. He spoke to his family back home and friends living in Brisbane and they encouraged him to continue his studies, but to move to Brisbane, which would provide him with a better study environment and allow him to be around friends.

16. The applicant followed their advice. He obtained a release from Holmesglen in July 2017 and obtained an enrolment in the Bachelor of Professional Accounting at Holmes Institute in Brisbane. The course was to commence on 24 July 2017 and conclude on 31 July 2020. The applicant studied first semester and passed 2 of 4 subjects that he undertook. He gave evidence that he was aware that Holmes Institute cancelled his Confirmation of Enrolment (CoE) in or about April/May 2018. The Decision Record confirms that he lost that enrolment in March 2018.

17. The applicant claims that he wanted to enrol in and complete a Certificate III, Certificate IV and Diploma in Automotive Repair and then undertake a Bachelor of Accounting, all at New England College. He claimed that he was not ready to successfully complete a bachelor’s degree as it was too difficult for him to complete. The applicant had enrolled in a Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology at New England College (Automotive Courses) but the College closed down in or around February/March 2019. He claimed that he was due to complete the Certificate III course in June 2019, but the College closed down and did not provide him with an updated record of completed subjects. The highest course he was enrolled in at New England College was a Diploma, which was a course at level 5 of the AQF. He claims that he was assured by the College that he was able to undertake those studies, and they would arrange for another institution to provide him with a Confirmation of Enrolment (CoE) to study a bachelor’s degree, so that he would not be in breach of his visa.

18. The Decision Record confirms that the applicant then enrolled, on 15 April 2019, in the following courses through Skilled Services Australia Pty Ltd (SSA):

    a.Certificate III in Light Vehicle Mechanical Technology;

    b.Certificate IV in Automotive Mechanical Overhauling; and

    c.Diploma of Automotive Technology.

19. The highest course level he was enrolled in at SSA, and at the time of the Department’s decision, was the Diploma of Automotive Technology, which was at level 5 of the AQF. At the time of enrolling at SSA, there was no evidence before the Tribunal that the applicant had attempted to enrol in a bachelor’s degree.

20. On 30 August 2019, the applicant was provided with a Notice of Intention to Consider Cancellation (NOICC).

21. The applicant submitted a detailed response to the NOICC on 13 September 2019, having obtained an extension of time within which to respond (Response) with supporting documents.

22. A further Notice of Intention to Consider Cancellation, which superseded the NOICC, was sent on 15 October 2019. The applicant submitted a further response in essentially the same terms of the Response.

23. The applicant conceded in evidence that he was not enrolled in a registered course that, once completed, would provide him with a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted, from 29 March 2018 to the cancellation of the visa on 8 November 2019, being a period of more than 19 months. By reason of not being enrolled in a course at level 7 of the AQF or higher from 29 March 2018, he did not meet condition 8202(2)(b) of his visa.

24. On the evidence before the Tribunal, it accepts that the applicant was not enrolled in a course at level 7 of the AQF or higher from 29 March 2018 to the cancellation of the visa on 8 November 2019. Accordingly, the applicant has not complied with condition 8202(2) of his visa. As this was a condition that was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

25. 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 or to remain in Australia

26. The applicant gave evidence that he came to Australia to study and undertake the courses as discussed above. 

27. As discussed above, the applicant has been enrolled in courses and studied since his arrival in Australia.

28. The applicant, by his evidence, had intended to obtain a Bachelor of Business (Accounting) and then, when he failed the first semester, enrolled in and studied a Bachelor of Professional Accounting, which he discontinued.

29. Notwithstanding that he found those courses difficult, he then enrolled in the Automotive Courses at New England College. He was studying a Certificate III in Light Vehicle Mechanical Technology when the College closed down in March 2019, and he then enrolled, in April 2019, in a suite of automotive courses at Skilled Services Australia, as discussed above.

30. The applicant gave evidence at the hearing that he had completed 90% of the Certificate III course at SSA and was on track to complete the Certificate III in June 2020. He is then enrolled to complete the Certificate IV in Automotive Mechanical Overhauling and the Diploma of Automotive Technology at SSA, and he will conclude those studies in April 2021.

31. He gave evidence that he is very keen to complete those qualifications. He gave evidence that after completing those qualifications, he is keen to undertake a Bachelor of Business or Accounting. He wishes to complete those qualifications and return to work in the business of Garage Singh, back in India, where he would maintain the files and records of the business, which employs more than 100 people and conducts automotive repairs and also manufactures parts.

32. Having regard to the applicant’s evidence and his conduct of continued study during the time he has been in Australia, the Tribunal accepts that the applicant travelled to Australia and stayed here to study, and he intends to study in the future.

1. The applicant was continuously enrolled in a registered course as set out above, but not at the appropriate level for the substantial period of more than 19 months, and the Tribunal gives these matters some weight towards the visa not being cancelled.

   The extent of compliance with visa conditions

2. The applicant was not enrolled at the appropriate level course from 29 March 2018 to the cancellation of the visa on 9 November 2019.  Therefore, the applicant has not complied with condition 8202(2) for over 19 months, which is a very long period of time.  The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa, unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason for non-enrolment. 

3. The applicant’s reasons for not maintaining his enrolment at level 7 of the AQF, which were detailed in the Response, were that:

   a.He struggled with the studies in the Bachelor of Business at Holmesglen in Melbourne due to homesickness and being alone;

   b.He struggled with his studies in the Bachelor of Professional Accounting at Holmes Institute in Brisbane because his mother became ill with a killer disease, which caused him a sufficient degree of stress and made him feel helpless until her recovery. He claims that he was advised by student services, after he received his first semester results, to reconsider his options and seek to undertake studies at a lower level, because they did not believe that he was ready for the standard of education at the bachelor level;

   c.He reconsidered his options, and on advice from friends studying at New England College, he spoke with the College and they advised him to consider taking a technical trade course and recommended that he undertake the Automotive Courses. The applicant confirmed that he was aware of his visa conditions and he discussed these with New England College, who advised him that if he continued his studies he would be fine and he would not be in breach of the visa. The applicant claims that he wanted to make sure that he would continue to a degree level qualification and they assured him that if he enrolled in the Automotive Courses, they would attend to making arrangements to provide him with a CoE in a bachelor’s degree in due course.

   d.The applicant claims that he followed up with the College by attending the student help desk after a few months, and they assured him that the College was having discussions with another education provider and it would be sorted out soon. He claims that he followed up months later and was told by the College that they were unable to get a CoE for a bachelor’s degree as the education provider they were dealing with was not providing CoEs for their students. The applicant was told he needed to obtain his own CoE. The applicant admitted in the Response he knew he was in breach of the visa and confronted the College about the breach, but the College refused to comment. Subsequently, the College ceased providing courses anymore, and he had to look for another education provider. The College refused to provide updated results to assist the students in gaining enrolment, and the applicant claims that the failure to provide results occurred because of problems with the College.

   e.The applicant then gained enrolment at SSA for a series of automotive courses in April 2019, and claims that at the time that he received the NOICC in August 2019, he was seeking to secure enrolment in a bachelor’s degree; he claims that the only reason that he has been unable to obtain the CoE was because he refused to leave his current studies and waste his studies in the Automotive Courses.

   f.The applicant wishes to complete his automotive studies and obtain a bachelor’s degree before returning to India.

4. While the Tribunal is sympathetic to the applicant’s plight in losing the progress he made in his studies at New England College, those matters do not directly go to the breach. The breach arises from the applicant’s failure to maintain enrolment in a bachelor’s degree.

5. The failure to maintain enrolment arises from the decision by the applicant to not continue with the Bachelor of Professional Accounting. He chose to undertake the Automotive Courses. The applicant did not submit any documentation that supported his evidence that the New England College would obtain a CoE in a bachelor’s degree for him. Notwithstanding he may have been assured by the College that they would endeavour to gain a CoE in a bachelor’s degree for him, the obligation rested on him to maintain the enrolment in a course at level 7 of the AQF or higher. The applicant was aware from his statement in the Response that he was in breach of the visa by not holding an enrolment in a bachelor’s course.

6. The applicant had the alibility to regularise his visa and remedy his breach by either:

   a.Enrolling in a bachelor’s degree course; or

   b.Applying to the Department for a new student visa.

7. However, the applicant, despite being aware of those breaches, did not take those steps and he was in breach of the visa for more than 19 months. He chose to continue studying automotive courses. Even when he was required to change courses and he moved to SSA, he did not enrol in a bachelor’s degree.

8. There was no corroborating evidence that the applicant had made applications to institutions to enrol in a bachelor’s degree. If the applicant had been offered an enrolment in a bachelor’s degree as claimed by the applicant in the Response, he elected not to take that enrolment up because he would have been required to cease his studies in the automotive courses. In such circumstances the applicant deliberately continued to study courses pursuant to a career path in breach his visa.

9. There was no medical evidence submitted that the applicant was suffering from stress or unable to study a bachelor’s degree due to his mental condition.

10. In the circumstances, the Tribunal does not accept the applicant’s reasons for not being enrolled in a course at the appropriate level or that the reason for not being enrolled in a course at the appropriate level was beyond his control.

11. The Tribunal does not find the applicant’s reasons for not being compliant with the visa compelling in circumstances where the applicant was aware that he would be in breach of his visa by not enrolling in a bachelor’s degree.

12. The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa. 

13. Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a bachelor level course or higher.

14. The Tribunal finds that the reasons for not being enrolled in a bachelor’s level course or higher were the responsibility of the applicant.

15. Having regard to the long period of the breach, and that the applicant was responsible for not being enrolled in the appropriate level of course, substantial weight is given towards the visa being cancelled.

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

16. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

17. The applicant gave evidence that, as set out in the Response, the visa cancellation would cause him and his family a substantial degree of hardship as they have invested substantial money in sending to him to Australia for his studies, and if he did not complete those studies it would affect his future plans and future in India.

18. The applicant also gave evidence that his future would not be bright if his visa was cancelled. While he conceded he could study automotive courses and business/accounting degrees back home, he lives in a small country town and it would be difficult to obtain those qualifications. He claims it would impact on his future.

19. While the applicant and his family may be disappointed with the cancellation of the visa and his inability to complete his studies, those matters arise from the applicant’s breach of the visa in his failure to maintain enrolment at level 7 of the AQF or higher.

20. The Tribunal accepts that there will be some financial hardship caused to the applicant and his family if the visa is cancelled, and some disappointment, especially as he has not completed a bachelor’s degree or diploma.

21. While the Tribunal finds that these matters may be the consequences of the visa cancellation, they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

22. The Tribunal considers that the above matters add marginal weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

23. 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.

24. The applicant gave evidence as to the circumstances that led to the cancellation of the visa, as set out above.

25. Ultimately, the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.

26. The applicant knew and was aware that by not being enrolled in a registered course of study at the appropriate level he would be in breach of condition 8202 and that his visa may be cancelled.

27. The primary purpose of the applicant is to undertake a registered course at a level appropriate to the visa granted. The applicant was not enrolled in a registered course at an appropriate level for a period of more than 19 months, which is a long period to be in breach of the visa.

28. The Tribunal has considered the applicant’s explanations for why he was not enrolled in a registered course at a level appropriate to his visa for such a substantial period of time, and therefore in breach of condition 8202(2). The Tribunal does not accept that the circumstances were beyond his control or that such circumstances are a reasonable explanation for not being enrolled at the relevant level of the AQF for such a lengthy period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

29. According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

30. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

31. If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa.

32. Further, if the Tribunal decides to affirm the decision to cancel the TU 500 student visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next 3 years.

33. However, these consequences are the intended consequences of the legislation when a visa is cancelled on these grounds.

34. The applicant gave evidence that if the visa remained cancelled, he would return to India and attempt to undertake studies in India, and therefore there is no indication that he would become unlawful or be subject to detention.

35. Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    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

36. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled, he would return to India; he did not give any reasons as to why he could not return to India and he has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

37. This matter is not relevant in this application as the cancelled visa is a temporary visa, and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

38. The Tribunal considers that a relevant matter is whether the applicant is able to obtain enrolment in a registered course at a level appropriate to his visa. If the applicant is unable to obtain enrolment in a course that it is at an appropriate level to his visa, this will weigh towards his visa being cancelled, as there would be little utility to setting aside the cancellation of the visa if the applicant would continue to remain in breach of his visa condition.

39. The applicant gave evidence that he wants to obtain a Bachelor of Accounting or Bachelor of Business. However, no corroborating evidence was provided that he could obtain such an enrolment. Nevertheless, the Tribunal accepts the applicant’s evidence that he would be able to obtain an enrolment in a bachelor’s degree, if the cancellation is set aside.

40. Accordingly, the Tribunal gives this no weight towards the visa being cancelled.

    Conclusion

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

    DECISION

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

    Michael Biviano
    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.