Kahlon (Migration)

[2022] AATA 4769

Kahlon (Migration) [2022] AATA 4769 (17 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanvir Singh Kahlon

REPRESENTATIVE:  Mr Muhammad Rafi (MARN: 1700370)

CASE NUMBER:  2206023

HOME AFFAIRS REFERENCE(S):          BCC2020/695176

MEMBER:Gabrielle Cullen

DATE:17 October 2022

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2022 at 2:38pm

CATCHWORDS  
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa – unsatisfactory course progress – father’s illnesses – length of non-compliance – decision under review affirmed 

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 13 April 2022 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 (Cth) (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The Tribunal received an application for review of the delegate’s decision from the applicant on 23 April 2022. The applicant attached the Department’s Notification of Cancellation under Section 116 dated 13 April 2022 and the Department’s Record of Decision to cancel under Section 116 of the Migration Act 1958[1] which indicates that on 17 March 2022 the Department notified and invited the applicant to comment on the intention to consider cancellation of his subclass 500 student visa, but no reply was received by the applicant.

   [1] The Tribunal notes that both the Department’s Notification of Cancellation under Section 116 dated 13 April 2022 and the Department’s Record of Decision to cancel under Section 116 of the Migration Act 1958 were sent by mail to the address requested by the applicant in his email dated 29 November 2021.

4. The applicant appeared before the Tribunal via video on 14 July 2022 to give evidence and present arguments.

5. The applicant was represented in relation to the application for review by his registered migration agent. His representative attended the hearing.

6. He was given until 24 July 2022 to provide further documentation as discussed at hearing.

7. 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

8. 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?

9. 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).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

11. The decision record also set out that the applicant was notified of the intention to consider cancellation (NOICC) of his visa on 17 March 2022. The representative submitted that the applicant received an email from the Department, in response he requested them to send correspondence to his mailing address rather than email but never received NOICC from them otherwise he would have replied to them.

12. The evidence indicates the NOICC was sent on 17 March 2022 by registered mail to the address provided by the applicant in his email to the Department dated 29 November 2021, where he requested the Department to send any corresponded to his mailing address, not to his email and provided the mailing address, the same which the Department used. The Tribunal is satisfied that the NOICC was validly issued.

13. The delegate found on 13 April 2022 the applicant had not been enrolled in a registered course of study from 18 January 2021 until 6 December 2021 and noted he was granted a student visa 17 December 2018 to 22 June 2022. The delegate proceeded to cancel the visa on 13 April 2022.

14. As raised with the applicant at hearing via s.359AA the applicant’s Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study from 18 January 2021 when enrolment was cancelled for unsatisfactory course progress until 8 November 2021. The COE the applicant submitted is dated 6 December 2021 but notes the course commenced on 8 November 2021[2]. The applicant was the holder of a subclass 500 student visa granted on 17 December 2018 and valid to 13 April 2022 in which condition 8202 applied.

    [2] While the NOICC refers to no enrolment to 6 December 2021 , PRISMS indicates that he commenced enrolment in the Advanced Diploma of Business on 8 November 2021

15. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study  from 18 Janaury 2021 to 6 December 2021 when he enrolled in the Advanced Diploma of Business. The applicant also did not dispute that he had not complied with condition 8202(2) of his visa.

16. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 18 Janaury 2021 to 6 December 2021. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

17. The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.

    Consideration of the discretion to cancel the visa

18. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

19. 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 Procedural Instruction ‘General visa cancellation powers’.

    Background

20. The applicant is a 30-year-old citizen of India. He first arrived in Australia on 22 August 2014 on a subclass 500 student visa valid to 30 September 2018 to undertake an English course and a Bachelor of Business but did not commence studies in the bachelor’s course rather successfully completed the English courses, a Certificate IV in Disability and Diploma of Community Services to 31 May 2018.

21. He was then granted a further subclass 500 visa on 17 December 2018 valid to 13 April 2022 to study an Advanced Diploma of Business from 7 May 2018 to 28 April 2019 followed by a Bachelor of Business from 13 May 2019 to 22 April 2022. At hearing the applicant indicated he did not successfully complete the Advanced Diploma of Business and did not commence the Bachelor of Business. As raised with him via s.359AA he then enrolled in the Diploma of Business Administration from 14 April 2020 to 11 April 2021 with enrolment being cancelled for unsatisfactory course progress on 18 January 2021. He submitted he is currently studying the Advanced Diploma of Business with the COE dated 6 December 2021, although the course began on 8 November 2021, and is due to finish on 5 February 2023. He also submitted a COE to study a Graduate Diploma of Management (Learning) from 6 February 2023 to 4 February 2024.[3] He submitted a letter from his course provider dated 11 July 2022 noting he has completed 2 units in the Advanced Diploma of Business.

    [3] The applicant’s study and movement records were raised via s.359AA at hearing.

22. The applicant’s representative  provided a submission to the Tribunal on 13 July 2022 outlining the applicant’s study history and the reasons for his lack of enrolment during the relevant period. In the submission he indicates that following the applicant’s arrival on 22 August 2014, he completed the 8 weeks English course, then attended the Diploma of Business for 2 terms but found it difficult to comprehend and moved to study the Certificate IV in Disability and Diploma of Community Services which he successfully completed on 31 May 2018. The applicant’s  representative submits the applicant applied for a new student which was granted to study a Diploma of Business Administration and Bachelor of Business to 22 April 2022. He submits that the applicant found the course difficult to comprehend so enrolled in an Advanced Diploma of Leadership and Management followed by admission to a  Diploma of Business Administration.

23. He submits that

    In late 2018, the applicant’s father’s health started deteriorating which gave him a lot of stress and grief. Being the only child of the family, he was very much attached with his dad. He wanted to go back but there was family pressure to continue his studies in Australia. His father medical documents are attached for your perusal please [Attachment 6].

    During studying at Strathfield college, his father got very sick with multiple issues including high blood pressure, kidney failure which resulted in regular dialysis, three times in a week. That situation incapacitated the applicant completely and he did not have neither the energy nor the financial access to continue his studies. This situation lasted until the applicant got his admissions again in Richmond School of Business in Advanced Diploma of Business followed by Graduate Diploma of Management

24. He claims his father died on 11 April 2022. He claims the applicant  made  a plan to travel to India but was advised at the airport his visa had been cancelled. He attached his itinerary indicating he was planning to travel to India from 13 April 2022 to 9 May 2022.

25. He claims the whole situation gave the applicant a lot of stress and anxiety which resulted in a  stroke and the applicant was hospitalised in Blacktown and then Westmead Hospital; and was diagnosed with extensive abnormality in the right temporal and parietal lobe. He attached numerous medical documents from June 2022 referencing this abnormality in the right temporal and parietal lobe, with one document noting this being caused by hitting a boom gate and heart scans with limited finings.

26. His representative submitted the following

    The applicant is currently enrolled in the following courses:

    • Advanced Diploma of Business - from 08/11/2021 till 05/02/2023

    • Graduate Diploma of Management - from 06/02/2023 till 04/02/2024

    Once his student visa is re-instated, he will complete the above-mentioned course within next 19 months and will go back to his country with Australian qualification which is very much respected and in demand both in India and UAE.

    Finally, it is submitted that Karanvir is a genuine student who faced some unforeseen circumstances, which were beyond his control during his study and stay in Australia, specially during the mentioned time of non-enrolment in the Decision Record of student visa cancellation.

    Karanvir is a 30 years old young adult whose future and entire career depends upon his successful completion of this qualification and return back to his home country to be a successful businessman.

    As Karanvir’s father has passed away, he has lot of family responsibilities on his shoulder, due to which he had a stroke and still going through stress and anxiety. If he does not complete these qualifications from Australia, his family would be disappointed and embarrassed, and he would bring shame to them. Returning to his home country without completing his qualification can have serious consequences for him including his health as well.

27. Evidence was provided of courses enrolled in and completed, enrolment in current courses of as well as of his father’s illness from 2018 and death on 11 April 2022.

28. He also provided evidence at the Tribunal hearing as to why he has not been enrolled and studying in the relevant period as outlined below.

29. The applicant repeated that he did not study because of the illness of his father, and he could not pay the fees as his father was ill and could not send him the money. The Tribunal asked about his father’s illness and he said in 2018 his father became ill with kidney issues, hypertension and heart issues, and he died on 11 April 2022 from kidney failure. He said he was on dialysis.  The Tribunal asked whether he is saying that his poor study record is because of the stress of his father’s illness, and he answered in the affirmative. The Tribunal asked how his illness in India affected his ability to study in Australia and he said because he was unable to send him money. He said he is the only son.

30. The Tribunal asked if he did not study in the relevant period because he could not pay the fees why he would not work in Australia to pay them himself. He said he worked part-time at Pizza Hut 2021 and when asked for how long; he was vague; and said a bit less. When the Tribunal asked him the time frame and whether it was 3 or 6 months he answered in the affirmative. He said that is the only work he has done since 2018.

31. The Tribunal raised of concern how his father’s illness from 2018 affected his ability to pass courses and to not be enrolled for those 10 months of non-enrolment in 2021. The Tribunal said it was confused as to how they were linked. He said he was very mentally stressed and that meant he could not study. The Tribunal asked whether he  sought any medical or psychological help for the stress as he was claiming he was so mentally affected he could not enrol and study. He said he did and the Tribunal asked who he sought the help from; and he said he went to the GP who gave him medication for the stress. The Tribunal asked if he has any evidence as there was no information or letter from his GP in the documents submitted. The representative noted there is no letter from the GP submitted only information as to difficulties he is currently suffering and the medical condition of his father. The Tribunal asked when he sought help; he said he used to go to GP on and off. The Tribunal raised of concern his lack of documentation as to the mental issues he claims were the reason he could not study; and he responded he does not remember the date but will try and obtain the documentation.

32. The Tribunal noted he was saying he could not study in 2021 or pass courses from 2018 because of mental stress due to his father’s illness but raised with him that his evidence is vague as to help he sought and when, how often he sought help and whether he was prescribed any medication and treatment given. He said he saw him on and off, he does not remember if he was given any medication and said he was not referred to a psychologist or psychiatrist.

33. The Tribunal noted the documents indicated the applicant went to hospital in June 2022 as he was hit in the head by a boom gate and had headaches following this and it asked whether that was what caused the brain issues in 2022. He said that was part of the reason but he said he was also very stressed as his father had passed away. The Tribunal noted it had only received the documents that morning but there appeared no reference to stress from his father’s illness or stress being the reasons for the June 2022 issue. It also noted that this was after the relevant period of non-enrolment and study.

34. The Tribunal asked was there any other reason in 2021 he could not study, other than his father’s illness, including its effect on him  and being unable to pay fees,  and he said that was the main reason.

35. The Tribunal asked why he was able to work but not able to study in 2021 if he was so mentally affected by his father’s illness; he said there was no money coming from India so he had to work.

36. The Tribunal referred to the courses he was currently enrolled in, including an Advanced Diploma of Business ad Graduate Diploma of Learning and asked why he now wants to study these courses; he said after he finishes these courses he is going to start his business in India. When asked what business; he said he will work in IT at the bank. He said his father used to work in a bank in India.

37. The Tribunal referred to  the many courses in India and asked why he could not study these courses in India and asked him why he ahd to stay and study in Australia. He said he has already studied here and is  happier with the quality of the education in Australia. He confirmed that what he is saying is that while he can study in India he would prefer to study in Australia as the quality of the education is better.

38. The Tribunal asked whether there is a compelling need for him to remain in Australia; and the applicant answered in the affirmative and he said because of the quality of the education. When asked if there was any other reason other than the quality of education and study as to why he needs to stay in Australia; he said the Australian qualification is considered more highly in India.

39. The Tribunal then asked about the extent of his compliance with visa conditions and referred to his lack of study in 2021  outlined above, and then referred to his previous study history and noted that since he applied for the visa in 2018 he had not completed any course. It also referred to his enrolment in the Diploma of Business Administration being cancelled for unsatisfactory course progress. In response the application said he has finished two courses and he then referred to the illness of his father and its effect on him as to his lack of course progress. The Tribunal noted that not achieving satisfactory course progress is also a breach of a condition of his visa and referred to condition 8202(3) and he referred to his father being sick, and he did not have money to pay the fees. The Tribunal raised with him that not being able to pay the fees because of his father’s illness does not seem to explain why he could not achieve satisfactory course progress. He said he could not focus on hs studies. He said he wanted to return but his father wanted him to stay and study.

40. The Tribunal then referred to the degree of hardship that may be cause if the visa is cancelled; he said there would be shame from his family. He said is the only son. He said he wants to go back with some qualifications. He said it would bring dishonour to his family.

41. The Tribunal referred to the CT scan submitted from June 2022 and asked if there is any hardship relating to that, injuries sustained or treatment if the visa is cancelled and he said he needs follow up treatment with doctors. The Tribunal asked with whom and he said with a  specialist and he said for brain treatment . He said this treatment was not available in India.

42. The Tribunal raised with him that there is no evidence before it of any future treatment required or ongoing treatment from specialists and no evidence he needed to stay in Australia for an operation or future treatment. He said he is taking some medication to reduce the haemorrhage. He said that is the diagnosis. The Tribunal asked why he could not obtain that in India and he said there are no good quality  doctors in India and the Tribunal disputed this.

43. The Tribunal asked if his visa is cancelled whether he would comply with a  lawful direction to depart and he answered in the affirmative

44. It asked  whether he had anything to add as to the circumstances as to how the cancellation arose; he answered in the negative.

1. The applicant said there would be no international obligation breached if he departed due to the cancellation of the visa, including whether he fears return and he said he had no dependents in Australia and does not fear return to India.

2. It asked whether there is any other relevant matter as to why the visa should not be cancelled he wants the Tribunal to consider. It asked whether there is anything else he wants to add that has not been covered. He asked him for permission to stay and complete his study.

3. The applicant’s representative said yesterday the applicant said to him that he takes medication that affects his ability to comprehend and is having neuro treatment. He noted that initially at Blacktown Hospital he was told he had a tumour in his brain and has been given many different  opinions about his medical situation. He referred to the applicant’s responses, his inconsistencies and that he ahd difficulty explaining his situation and his representative said he will ask him to submit the medications he is taking which will establish his capability.

4. The Tribunal noted that if he is suffering a brain injury or any other medical issues that is under treatment it requires evidence from specialists, such as his neurologist and GP, as to treatment and whether and what future treatment is required. It noted all that has been provided is a CT scan which does not appear sufficient to say that it would be hardship for him to depart as he needs treatment in Australia or that he does not have capacity at the hearing. It raised with him that on the documentary evidence available it was difficult to draw those conclusions and whether his treatment is a hardship and reasons why he needs to stay in Australia and why he could not provide consistent evidence

5. The Tribunal agreed to the  request for 10 days to submit the evidence.

6. The applicant’s representative also referred to his prorogues in the current course

7. On 28 July 2022 the applicant provided a letter from Dr Kheray, his GP noting the applicant sustained a head injury which was initially treated at Westmead hospital and his father died on 11 April 2022 and he could not visit for his last rites in India. The Doctor noted the applicant had presented to their practice on multiple occasions since mid-2021and  that the chain of events from mid - 2021 caused him high anxiety, insomnia, adjustment issues and hypertension for which he is on medication. The letter notes he understands the applicant has missed college on a few occasions for these reasons last year.

8. Due to the significant grammatical errors in the letter, the Tribunal wrote to Glenwood Medical Centre who confirmed the letter is genuine.

   The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

9. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purpose of study. The evidence from the applicant is that he first arrived in Australia on 22 August 2014 on a subclass 500 student visa valid to 30 September 2018 to undertake an English course and a Bachelor of Business. The Tribunal accepts that his travel to Australia in  August 2014 was for the purpose of study.

10. The evidence indicates he completed the 8 weeks English course, then attended the Diploma of Business for 2 terms but found it difficult to comprehend and moved to study the Certificate IV in Disability and Diploma of Community Services which he successfully completed on 31 May 2018. 

11. He was then granted a further subclass 500 visa on 17 December 2018 valid to 13 April 2022 to study an Advanced Diploma of Business to 28 April 2019 followed by a Bachelor of Business from 13 May 2019 to 22 April 2022. At hearing the applicant indicated he did not successfully complete the Advanced Diploma of Business and did not commence the Bachelor of Business. As raised with him via s.359AA he then enrolled in the Diploma of Business Administration from 14 April 2020 to 11 April 2021 with enrolment being cancelled for unsatisfactory course progress on 18 January 2021. He submitted he is currently studying the Advanced Diploma of Business with the COE dated 6 December 2021, although the course began on 8 November 2021, and is due to finish on 5 February 2023. He also submitted a COE to study a Graduate Diploma of Management (Learning) from 6 February 2023 to 4 February 2024.[4] He submitted a letter from his course provider dated 11 July 2022 noting he has completed 2/10 units in the Advanced Diploma of Business.

    [4] The applicant’s study and movement records were raised via s.359AA at hearing.

12. The evidence indicates that since he completed the Diploma of  Community Services in mid-2018[5], he has not successfully completed any course,  enrolment in the Diploma of Business Administration studied from 14 April 2020 to 11 April 2021 was cancelled for unsatisfactory course progress on 18 January 2021 and he was not enrolled in a course from 18 January 2021 to 6 December 2021 when he enrolled in the Advanced Diploma of Business.

    [5] The applicant’s representative refers to it as a Diploma of Community Service and the Tribunal notes PRISMS refers to it as a Diploma of Disability. The Tribunal accepts  it is the same course and he completed this course.

13. The applicant has referred to his father’s illnesses from 2018, as described above with supporting documentation as affecting his ability to enrol and study and achieve course progress. He said that he was very affected mentally and this resulted in him being unable to study and also as his father paid for the fees he could not afford to study. He also referred to a head injury and provided CT scans from June 2022, although when the Tribunal asked if there was any other reason in 2021 as to why he could not study, other than his father’s illness, including its effect on him  and being unable to pay fees,  he said that was the main reason.

14. The Tribunal raised as of concern at the hearing that it may expect there to be medical evidence if the mental issues he suffered due to his father’s ill health and other medical issues were so great that from 2018 to December 2021, including from 18 January 2021 to 6 December 2021, he could not study and/or achieve course progress. Following the hearing he provided a letter from his GP that notes that the applicant sustained a head injury which was initially treated at Westmead Hospital and his father died on 11 April 2022 and he could not visit for his last rites in India. The Doctor noted the applicant had presented to their practice on multiple occasions since mid-2021 and that the chain of events from mid - 2021 caused him high anxiety, insomnia, adjustment issues and hypertension for which he is on medication. The letter notes he understands the applicant has missed college on a few occasions for these reasons last year.

15. While the Tribunal has accepted above that his travel to Australia in 2014 was for the purpose of study it does not except for the reasons outlined below that since the time of the grant of his last student visa in December 2018 his stay in Australia was for the purpose of study. The Tribunal views his lack of course progress since that time, not successfully completing any course, and his  enrolment in the Diploma of Business Administration being cancelled for unsatisfactory course progress and his lack of enrolment from 18 Janaury 2021 to 6 December 2021, to undermine his claim his stay in Australia was for the purpose of study. The Tribunal is of the view if his intention was to study he would have enrolled and studied from 18 January 2021 to 6 December 2021 and prior to that achieved course progression from 2018.

16. In making this finding the Tribunal has considered the reasons he did not study in the relevant period. The Tribunal accepts the applicant’s father was ill as claimed, that the applicant suffered a head injury as claimed, although this appears to have happened din June 2022, after the relevant period, and he had some medical issues for which he takes medication, however, is of the view these do not explain his lack of study from 18 Janaury 2021 to 6 December 2021 or his lack of course progress prior to that from 2018, including achieving successful course progress in the Diploma of Business Administration. While the medical evidence submitted from his GP notes the applicant having high anxiety, adjustment, insomnia and hypertension, it only refers to this causing him to miss college on a few occasions in 2021 and that these arose from mid-2021. The Tribunal  is of the view that if the mental stress and medical issues he faced were to the extent that he could not attend and study his doctor would have referred to him being unable to study at all rather than missing College on a few occasions. Further, it is of the view he would have sought medical or professional help sooner than mid 2021 or if he had there would be evidence from the GP he was unable to study in the entire relevant period due to the mental and other issues he claimed. Further, the Tribunal also notes the applicant’s  evidence was  vague and lacking in detail at hearing as to help he sought including when, how often he sought help and whether any medication and treatment was given, which undermines his claim he was unable to study due to these reasons.

17. The Tribunal also notes that the evidence of the head injury is from the June 2022 CT scan, which refers to the applicant being hit by a boom gate and when asked about this injury at hearing he was vague and later indicated that the main reason he could not study in the period was  as a result of his father’s illness and the effect it had on him, and did not refer to the brain issue or head issue. While the applicant’s representative referred to a stroke and brain tumour the applicant did not refer him having such issues which prevented him from studying in the relevant period in 2021 or achieving course progress prior to that.

18. Further, the Tribunal views as of concern that despite the applicant claiming he was unable to study in 2021 due to mental and medical issues he was able to work at Pizza Hut for around 3 to 6 months. The Tribunal views his ability to work at Pizza Hut to be  inconsistent with him being unable to enrol and attend College from 18 January 2021 to 6 December 2021.

19. He has also claimed that as his father was ill he could not afford to study; however this does not explain why enrolment in the Diploma of Business Administration was cancelled for unsatisfactory course progress on 18 January 2021 not for non-payment of fees. The Tribunal is of the view if he could not continue to study due to  non-payment of fees this would be the reason enrolment was cancelled.

20. Despite his current enrolment in the Advanced Diploma of Business, having completed 2 units and Graduate Diploma of Management (Learning) the Tribunal is not satisfied that his stay in Australia is for the purpose of study due to his past poor study history.

21. As to whether there is a compelling need for him to stay in Australia, the applicant referred to now being enrolled in the Advanced Diploma of Business, having completed 2 units, and Graduate Diploma of Management (Learning). When asked why he could not study a similar course in India he referred to the quality of education in Australia and that it is considered more highly than in India. He said he has already studied here and is  happier with the quality of the education in Australia. He confirmed that while he can study in India he would prefer to study in Australia as the quality of the education is better. The Tribunal has considered the applicant’s evidence however, on the material before it, the Tribunal is not satisfied that the applicant has a compelling need to travel and remain in Australia.

22. The Tribunal gives this this discretionary factor no weight in favour of the applicant.

    The extent of compliance with visa conditions

23. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 18 January 2021 until 6 December 2021.

24. The Tribunal considers this period to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

25. There is also evidence that enrolment was cancelled for unsatisfactory course progress in the Diploma of Business Administration on 18 January 2021, which may indicate a breach of condition 8202(3).

26. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his visa.

27. Although there is no other evidence of non-compliance other than the above, considering the period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, and that enrolment in the Diploma of Business Administration was cancelled for unsatisfactory course progress, the Tribunal gives this discretionary factor little weight in favour of the applicant.

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

28. At hearing the applicant referred to the shame that will have to be endured by his family  if he returns without a qualification. He said being the only son he will dishonour them if he returns without qualifcations. His representative referred to his embarrassment as the only son.

29. When asked why he could not study in India as there are many courses available to him there, he said he could but he wants to stay and study here as the quality is better, he is used to studying in Australia and is happier studying in Australia. His representative referred to the benefits to his future career of having Australian qualifications.

30. As set out above, the Tribunal is satisfied that the applicant still has study options available to him in his home country. It also notes he has already obtained Australian qualifications albeit not at the Advanced Diploma or Graduate Diploma level. While it accepts there is a degree of hardship to the applicant  and his family as to his lack of obtaining Australian qualifications on the evidence before it the Tribunal gives such disappointment, embarrassment  and shame for him and his family, as well as dishonouring them, especially as he is the only son low weight in favour of the applicant. It gives not being able to continue his study low weight in favour of the applicant.

31. The Tribunal has also considered the degree of hardship the applicant will face if he is unable to attend follow up medical treatment, which at hearing he indicated was ongoing, referring particularly to the hospitalisation in June 2022 and CT scans undertaken at that time showing  an abnormality in the right temporal and parietal lobe. However, despite discussing this at hearing and the applicant being given more time to provide documentary medical evidence from his treating specialist or medical practitioner of his ongoing need for treatment, none was provided as to this issue.

32. On the basis of the evidence before it the Tribunal gives this consideration low weight in favour of the applicant.

    Circumstances in which the ground of cancellation arose

33. In his evidence the applicant has advanced several matters that impacted on his ability to study. He has referred to his father’s illness and the mental issues he suffered as a result and that he could no longer pay the fees for the courses. The Tribunal has considered these above and the other issues he has put forward as to the reasons for non-enrolment. It has also considered the letter from his Doctor. Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that the applicant was impacted by this father’s illness and other issues as claimed but not to the extent claimed which led him to be unable to be enrolled and study at all from 18 January 2021 to 6 December 2021. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa. Therefore, the Tribunal only attributes them low weight in favour of the applicant.

    Past and present behaviour of the visa holder toward the Department

34. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be any consequential cancellations under s.140

35. The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

    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

36. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

37. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.

38. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa other than those prescribed in reg 2.12. However, those are also intended and legitimate consequences of cancellation.

39. The Tribunal gives this consideration neutral weight.

    Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

40. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.

41. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.

42. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

43. No other relevant information has been raised by the applicant

44. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, the Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further,  the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

1. At the hearing the applicant’s representative referred to the capacity of the applicant to give evidence. The applicant was given time after the hearing to provide supporting documentation as to this claim, however none was provided. Therefore, on the evidence before it the Tribunal does not accept that the applicant’s evidence was affected by a capacity issue.

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

   DECISION

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

   Gabrielle Cullen
   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.