Khan (Migration)

[2024] AATA 4018

Khan (Migration) [2024] AATA 4018 (9 October 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Altamash Ahmed Khan

CASE NUMBER:  2317824

HOME AFFAIRS REFERENCE(S):          BCC2023/5485710

MEMBER:Senior Member D Connolly

DATE:9 October 2024

PLACE OF DECISION:  Sydney

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

Statement made on 09 October 2024 at 12:16pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – failure in all subjects and non-payment of fees – mother’s health and applicant’s visit – new enrolment in at lower level in different subject area after contact by department – study and further enrolment – work in breach of visa condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 October 2023 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 on the basis that the applicant was found not to have complied with a condition of his visa.  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. On 28 August 2024 the applicant was invited to participate in a hearing, in person, on 25 September 2024. The applicant was sent two SMS hearing reminders, on 18 and 24 September 2024.  On 24 September 2024 the applicant called the Tribunal and stated he was too unwell to attend the scheduled hearing. He was informed that he would need to provide medical evidence to confirm this was the case. The applicant then suggested he might be able to participate in the hearing by video link. He then emailed the Tribunal confirming he wanted his hearing to be held by video. He provided an email address for the purposes of changing the mode of his hearing to video. A Tribunal officer contacted the applicant and he confirmed that he had received the video link information. The officer offered to test that the link worked. The applicant said that he could not test the link because he was being driven to the hospital but that he would contact the Tribunal if the link did not work.

4. The applicant appeared before the Tribunal by video (MS Teams) on 25 September 2024 to give evidence and present arguments. At the commencement of the hearing the applicant confirmed he was not at the hospital and he could proceed with the hearing by video.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

7. The applicant has provided to the Tribunal a copy of the delegate’s decision record, which includes information set out below.

8. The applicant is a 30 year old male citizen of India. He was most recently granted a student visa on 1 September 2022 to undertake study in Australia for a Master of Business Information Systems at Torrens University. This visa was subject to among others, condition 8202.

   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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the 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)(i), and

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

10. The applicant’s visa was cancelled on the basis he was not enrolled in a full time registered course.

11. On 18 October 2023, the Department sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, as the applicant was not enrolled in a course of study. The applicant was informed that the Department has access to the Provider Registration and International Student Management System (PRISMS), which provides the Confirmation of Enrolment (CoE) and study records of international students registered to study in Australia. He was informed PRISMS indicated that he was not enrolled in a registered course from 11 November 2022 to 29 September 2023 and therefore had not complied with the requirements of subclause (2)(a) of condition 8202.The applicant was informed that this may be a ground for cancellation of his visa and he invited to comment.

12. The applicant responded on 25 October 2023 stating he was enrolled in the Master of Business Information Systems but failed all subjects. His mother in India was sick during his second semester and he could not study. He went to India in August 2022 to see her as she was hospitalised. Her health worsened in January 2023 and she was readmitted to hospital in February 2023. Ultimately it was decided she needed a kidney transplant and she was admitted to hospital in August 2023. After the transplant her health improved and the applicant decided to return to study. He enrolled in a Leadership and Management Diploma commencing 30 September 2023 due to finish by 11 November 2024. He also decided to enrol in the Advanced Diploma which will commence in November 2024, due to be completed on 28 September 2026.

13. The applicant stated that everything is now fine with his family, financially and mentally, and so he is able to complete his studies. He stated that once he has completed his studies he intends to return to his home country as he is obliged to care for his parents. He set out his understanding of his student visa obligations.

14. The applicant provided medical certificates relating to his mother’s hospital admissions, and itineraries for his flights to India.

15. The delegate noted that the applicant’s PRISMS records indicate that his CoE in a Master of Business Information Systems at AIH Higher Education was cancelled on 11 November 2022 due to non-payment of fees. On 29 September 2023, the Department contacted the applicant via a phone call in relation to this cancellation matter. Subsequently, on 30 September 2023, the applicant enrolled in a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management at Australian Smart College. The delegate confirmed however, in the decision record provided to the Tribunal by the applicant, that during the period 11 November 2022 to 29 September 2023, the applicant did not hold a valid CoE and was not enrolled in a full-time registered course.

16. The delegate noted that the applicant was first granted a student visa to study in Australia on 8 August 2018. She noted the applicant submitted that he failed all subjects in the Master of Business Information Systems and so was unable to maintain academic progress. She noted he attributed this to his concern about his mother’s health conditions, but that his mother has now had a kidney transplant and the family are stable, financially and mentally and that he now wishes to resume studies. The delegate formed the view the applicant’s current CoEs were obtained in an attempt to avoid possible cancellation action rather than because of a genuine intention to study. She considered the courses the applicant has enrolled in after being contacted by the Department and his expressed purpose for remaining in Australia are not consistent with his purpose of undertaking the Master of Business Information Systems, proposed by him in the application for his student visa, the subject of this review. The delegate formed the view the applicant’s current purpose for staying in Australia is no longer in line with that for which his student visa was granted.

17. The delegate formed the view non-compliance with condition 8202 is significant. She acknowledged the applicant may suffer some hardship but found there was no information to indicate he has any family in Australia, or has otherwise established any significant ties to Australia such that cancelling his student visa will cause significant hardship.

18. Regarding the circumstances in which the ground for cancellation arose the delegate noted the applicant’s submissions and evidence in relation to his mother’s health conditions and his travels to India. However she noted he had not provided any evidence that he had any communication with his previous education provider in relation to those circumstances. The delegate noted it would have been open to him to approach his education provider to request a deferment of his studies, along with contacting the Department directly, or via the website, or a registered migration agent or legal practitioner, for advice on the visa options available given his circumstances. She noted it was his responsibility to be aware that condition 8202(2)(a) is fundamental to his visa, and if he did not maintain his enrolment, his visa would be subject to cancellation.

19. At the hearing the applicant indicated he could not remember the exact dates during which he was not enrolled in a registered course. The Tribunal explained to the applicant that the delegate recorded that he was not enrolled in the period 11 November 2022 to 29 September 2023, and that he had not provided any evidence to the contrary. He acknowledged that he understood that he had not complied with condition 8202 because he was not enrolled in a registered course.

20. On the evidence before it, the Tribunal is satisfied, on the basis of the information in the delegate’s decision record, noting that PRISMS records that the applicant was not enrolled in a registered course from 11 November 2022 to 29 September 2023, that the applicant was not enrolled in a full time registered course during that period. Accordingly, the applicant has not complied with condition 8202(2)(a).

    Consideration of the discretion to cancel the visa

21. 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 Procedural Instruction ‘General visa cancellation powers’.

    Circumstances in which ground of cancellation arose

22. By way of background, the applicant has submitted in writing to the Tribunal that he was granted a student visa on 1 September 2022 to study Master of Business Information Systems from Torrens University to be completed by March 2024. Later he enrolled in the same course at the Australian Institute of Higher Education and tried hard to pass but unfortunately failed all the subjects as he was not able to cope with his studies as he was   getting updates from India that his mother was feeling sick due to high blood sugar, hypertension and mild kidney failure. His mother’s health was not improving so he went to India to see her as she was hospitalized from 3 August 2022 to 15 August 2022. Her health worsened at the end of January 2023 and they could not manage her at home so she was admitted to hospital again and diagnosed with kidney failure. She was having dialysis and he was very worried about her. She was not getting better so they registered her for a kidney transplant. She was in hospital from 23 August 2023 to 2 September 2023 and had the transplant. She is now getting back to normal and so he has decided not to waste his time anymore. He is now ready to stay in Australia and study.

23. At the hearing the applicant told the Tribunal that he first came to Australia in 2018 to study for a Master of Science – Supply Chain Management at the University of Wollongong. He told the Tribunal that he completed only one semester of that course because his friends said IT was a better option. He then enrolled in a Master of Business and Information Technology at Torrens University. However he stopped studying that course because his family told him his mother was sick.   

24. In submissions to the delegate the applicant indicated, with respect to the circumstances in which the ground for cancellation arose, that he returned to India due to his mother’s illness. The delegate noted however that PRISMS records that the applicant’s CoE in a Master of Business Information Systems at AIH Higher Education was cancelled on 11 November 2022 due to non-payment of fees.   

25. The Tribunal asked the applicant about these circumstances. The applicant stated he first became aware of his mother’s illness in October 2022. He then corrected his evidence and said he found out about the illness in about July. When he found out his family said she was fine and he did not need to return to India. However the applicant said that he wanted to see her and at the end of July he decided to go to India and see his mother.

26. The applicant provided to the Tribunal the following medical certificates:

    a.Certificate No 155, dated 25 August 2022 from Princess Durru Shehvar Children’s & General Hospital claiming Saidun Nisha, aged 67, came to the hospital with “rised level sugar, hypertension & mild kidney failure with swelling on both feet”. It states she was hospitalised from 3 August 2022 to 15 August 2022.

    b.Certificate No 43, dated 6 March 2023 from Princess Durru Shehvar Children’s & General Hospital claiming Saidun Nisha, aged 67, came to the hospital with “symptoms of kidney failure, vomiting, high BP and rised sugar levels”. It states she was hospitalised from 16 February 2023 to 23 February 2023. She was advised to rest and have hemodialysis.  It notes the patient’s son in Australia (the applicant) was notified.

    c.Certificate No 291, dated 12 September 2023 from Princess Durru Shehvar Children’s & General Hospital claiming Saidun Nisha, aged 67, was admitted to the hospital with kidney failure and so a kidney transplant was performed. It states she was hospitalised from 23 August 2023 to 2 September 2023. She was advised to have complete bed rest. 

27. The applicant also provided evidence regarding his flights from Australia to India, on 8 August 2022, 16 February 2023 and 21 August 2023. The applicant indicated that he returned to India on those occasions because he had been informed by his family of his mother’s illness.

28. The Tribunal noted from the evidence provided by the applicant that the ticket for the travel on 8 August 2022 was actually booked on 2 July 2022. It explained to him that this might cast doubt on his claim that he returned to India because of his mother’s illness. The Tribunal discussed with the applicant the concerns raised by the apparent inconsistency in his evidence; that he decided at the end of July that he wanted to see his mother, but that the 8 August 2022 flight was actually booked on 2 July 2022. The Tribunal also noted that in January 2023 the applicant had booked his flight to India, before his mother was hospitalised in February 2023. It explained that it might appear the applicant was already planning to return to India before his mother was hospitalised. The applicant claimed he did not know she was going to hospital when he booked those flights, he just knew she was sick.

29. The Tribunal asked the applicant about the decision that his mother have the kidney transplant. The applicant indicated that in January when she had to go on dialysis, they had a planning meeting but he was not aware of this. He said she then had the transplant in August 2023. She only had to wait seven or eight months to have a kidney transplant. The Tribunal noted there is country information indicating people in India wait three to five years for a kidney. He acknowledged people in India usually wait for over 18 months but he did not have anything to do with the discussions about the transplant as he gets panic about these things because he is the youngest. The Tribunal asked about his mother’s transplant surgery. He said it was conducted in the Princess Durru Shehvar, a very old hospital. He said the doctors go to that hospital to conduct surgery. He is not sure if the doctor who signed the medical certificates works in that hospital. He was not sure about the details because he did not visit his mother in the hospital as he has low blood pressure and the family said “you are the youngest. You have to be at home.” He said his health is not always good. The Tribunal asked why the applicant went to India if those were his circumstances. He said he went to India to satisfy his emotions.

30. The Tribunal asked the applicant about the source of the medical certificates for his mother, which he provided, and asked if they were genuine. The applicant indicated he got the email in September (2022) that he had been granted his student visa. He indicated he did not care about the student visa, he just wanted to see his mother. He was on a bridging visa when he went to see his mother (in August 2022). If he cared about the student visa (granted on 1 September 2022) he would not have gone back to India.

31. The Tribunal asked the applicant why he did not enrol in a course of study when he returned to Australia in February 2023, given his CoE had been cancelled in November 2022. The applicant indicated he was wondering how the family was going to manage. He did not really understand what was going on. When asked if he was working during this period, he confirmed that he was, but claimed that he was only working a day or two, and sometimes he was not going to work. The Tribunal noted he was able to work and as the holder of a student visa he should have been enrolled in a registered course. He indicated he was only working so he could interact with some people, to release his stress.

32. The delegate noted the applicant’s enrolment in the Master of Business Information Systems was cancelled on 11 November 2022 and he did not enrol in another course until September 2023 when the Department contacted him about his student visa. The Tribunal discussed with the applicant the purpose of the student visa, and its concern that he returned to Australia from India in February 2023, as the holder of a student visa, yet did not make attempts to enrol in a registered course as required by condition 8202. It noted his evidence indicated he was capable of working for the car rental business, a2b, but was concerned that he did not make sure he was enrolled in a course. The applicant questioned how he would be able to study given his family circumstances. The Tribunal asked why he did not return to India if he could not study because of his family’s circumstances. He stated he did go back to India. The Tribunal asked why he did not stay in India if he was so distracted by his mother’s health issues. He stated he should have stayed in India but his older brother, who makes all the family decisions, said he should return to Australia and finish his studies. He claimed his family’s main concern was that he finish his studies in Australia. The Tribunal explained that it was having trouble reconciling this with the fact that he was not enrolled so he was not studying in Australia; rather, he was working in Australia. The applicant said he worked at the car rental business to minimise his stress because he could not just sit around at home thinking about his family.

1. The Tribunal gave the applicant an opportunity to comment on the delegate’s view that he only enrolled in a course in September 2023 because he was contacted by the Department in relation to a possible visa cancellation. The applicant stated he thought he needed to finish his education. He said he continued to work for the car rental business after the delegate’s decision because they needed him to manage all the people and the papers. The Tribunal questioned how he could do this if he was only working one or two days a week. He said he did it by laptop and emails from home. He was not managing the car fleet because that cannot be done from home.

2. The Tribunal has considered all the evidence regarding the circumstances in which the ground for cancellation arose. It finds the applicant’s evidence about the reason he returned to India in August 2022 somewhat unpersuasive because he claimed to have decided to return to see his sick mother at the end of July, however his own documentary evidence confirms that he booked the flight on 2 July 2022. It has some reservations about his claims that he was returning to India because of his mother’s medical condition as it finds it unpersuasive that he could not visit his mother because he is the youngest and has low blood pressure. He has provided no medical evidence to support the claim regarding his own condition. It also finds it unpersuasive that he was so distracted by his mother’s condition that he could not study, as on his own evidence he continued to work, managing the people and paperwork for a car rental business. The Tribunal notes the applicant has not provided any evidence that he communicated with his previous education provider in relation to his mother’s medical condition and his need to return to India, as raised by the delegate in the decision record. It agrees with the delegate that it would have been open to him to approach his education provider to request a deferment of his studies, along with contacting the Department directly, or via the website, or a registered migration agent or legal practitioner, for advice on the visa options available given his circumstances. It also finds it unpersuasive that in February 2023 his brother wanted him to return to Australia to complete his studies as he was not in fact enrolled in a course of study from November 2022.

3. The Tribunal has some reservations about whether the applicant’s mother was in fact ill and underwent a kidney transplant in September 2023. However even if this was the case, the Tribunal is not persuaded this was the primary circumstance leading to the ground for cancellation arising, as he has claimed. The applicant has not addressed the issue that his CoE was cancelled in November 2022 for non-payment of fees. In the Tribunal’s view the applicant has not adequately explained why he was not enrolled in a registered course from November 2022 to September 2023.

4. Considered overall, the Tribunal gives this factor weight in favour of exercising its discretion to cancel the visa. 

   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

5. The applicant came to Australia in 2018 to complete a Master of Science at Wollongong University. The applicant told the Tribunal that prior to travelling to Australia he completed a Bachelor of Technology and Mechanical Engineering in India.

6. At the time of review application, the applicant submitted in writing that he is enrolled at Australian Smart College in a Diploma and Advanced Diploma of Leadership and Management. He claimed he is now a genuine student and his only true intention is to complete his studies and return to his home country as he is obliged to take care of his parents. He listed the international student’s obligations.

7. The Tribunal asked the applicant about his purpose for staying in Australia. He stated he wants to finish his education, the Diploma of Leadership and Management, and he will then go back to his family in India.

8. The Tribunal asked the applicant why he wants to complete the Diploma courses, which appear to be a general management courses. The applicant stated in the engineering field, they need management people. He is not a mechanical person. He is more of an operational management person.

9. The Tribunal noted that the applicant was granted the student visa, the subject of this review, in September 2022 to complete the Master of Business Information Systems but that after the visa was granted, he then enrolled in a Diploma and Advanced Diploma of Leadership and Management at Australian Smart College, which was not the intention he expressed when he applied for the student visa. The Tribunal asked why the applicant did not complete the Master course. The applicant said that he commenced studying the course but he found he could not relate to IT. He was trying to understand himself but then the family situation arose.

10. The Tribunal asked the applicant if there is any compelling need for him to remain in Australia. The applicant stated he has no other reason for staying in Australia but to finish the Diploma. He does not want to work here. The Tribunal noted the courses he now wants to complete are lesser courses that the Bachelor degree he already has from India. The applicant thought it would be a good qualification for him to have as he would be upskilled with management skills. He acknowledged the college he is enrolled in is not known in India but he claimed they ask for Australian qualifications there.

11. The Tribunal asked the applicant about his achievements so far since he arrived in Australia in 2018. The applicant said that he was not lucky enough as a student to not have any family issues. The Tribunal asked the applicant again, what had he achieved since arriving in Australia. He acknowledged that he had not completed any courses or achieved any qualifications in Australia since arriving in 2018.

12. The Tribunal has considered all the evidence relevant to this factor. It takes into account that the applicant claims he now wants to complete the Diploma/ Advanced Diploma of Leadership and Management at Australian Smart College. However it finds it concerning that the applicant has not completed any courses since arriving in Australia in 2018. For the reasons given above it is not satisfied his mother’s health issues were the primary reason why he was not enrolled in a registered course from November 2022 to September 2023. The Tribunal also notes the applicant’s purpose for remaining in Australia has changed more than once. First he claimed he wanted to complete a Master in Science, then he applied for another student visa because he claimed he wanted to complete Master of Business Information Systems. Now he is claiming he wants to complete diploma courses in leadership and management. The Tribunal is not persuaded the applicant will complete the Diploma/ Advanced Diploma of Leadership and Management at Australian Smart College. It has considered his response to the delegate’s concern that he has only enrolled in the Diploma courses to avoid visa cancellation, that he thinks he needs to finish his education. However the Tribunal is also concerned the applicant has enrolled in this course merely to avoid his student visa being cancelled and he will not complete either of the courses.

13. Overall the Tribunal gives this factor some weight in favour of exercising its discretion to cancel the visa. 

    The extent of compliance with visa conditions

14. Based on the delegate’s decision record, provided to the Tribunal by the applicant, the applicant did not comply with condition 8202(2) as he was not enrolled in a registered course of study from November 2022 until September 2023 when he enrolled in a registered course after he was contacted by the Department in relation to a possible visa cancellation. The Tribunal finds this period of non-enrolment to be significant and concerning. It finds the breach of condition 8202(2)(a) is significant as this condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

15. When asked if the applicant has ever worked in Australia, he claimed he has not worked in Australia since March 2024 but admitted he has worked unlawfully since the delegate cancelled his visa. Initially he said he worked unlawfully for one or two months, then he said it was for six weeks, then he said it was for four weeks.  He did however state that he breached a No Work condition. He said he did this because his employer needed him and asked him to keep working at the car rental company, a2b. Having considered his explanation for continuing to work for a2b, the Tribunal is not persuaded there was any urgent need for him to continue to work when he knew, based on his own oral evidence, he had a No Work condition imposed on his visa. It is concerned this demonstrates a willingness on the applicant’s part to breach visa conditions.

16. The applicant stated he has not breached any other visa conditions. There is no evidence before the Tribunal that he has breached other visa conditions.

17. Overall, the Tribunal gives this factor some weight in favour of exercising its discretion to cancel the visa.

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

18. With respect to this factor, the applicant told the Tribunal that the only hardship would be if he did not finish his education because that is what his family wants him to do. He now wants to complete a management course. He said as soon as he finishes the course he will go back home and work in a better job. However it will be hard for him if he cannot go back with the diploma. He also indicated his brother will be angry if he does not complete the course.

19. The Tribunal asked the applicant why it would cause him hardship to go home and do a management course in his own country.  He claimed, if he could have done a management course in India, he would not have come here in the first place. He claimed people in India know about courses from Australia and it will help with employment. The Tribunal finds this unpersuasive as it is not satisfied the applicant cannot complete a recognised management course in India. It is not persuaded that the applicant not being able to complete the leadership and management course at Australian Smart College will disadvantage him such that he will suffer hardship in India.

20. The applicant did not make any claims that he or his family are likely to suffer any other hardship if the visa is cancelled. He indicated his mother should be in rest mode, suggesting she may be affected by a visa cancellation but he also said she is well now and he did not expand on this.

21. The Tribunal is not satisfied the applicant’s brother being angry, and/or his mother being affected by a visa cancellation will cause the applicant or his family hardship.

22. Overall the Tribunal gives this factor neutral weight.

    Past and present behaviour of the visa holder towards the department

23. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past.

24. The Tribunal gives this factor neutral weight.

    Whether there would be consequential cancellations under s 140

25. The applicant does not have any dependents on his student visa. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled.

26. The Tribunal gives this factor neutral weight.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

27. There are mandatory consequences if the applicant’s visa is cancelled, including possible detention and removal from Australia, as well as difficulties in obtaining any further visas.

28. If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and he would have difficulties in obtaining any further visas in Australia, following the expiry of his student visa. 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 ability to make a valid application for any visa other than those prescribed in reg 2.12.

29. When asked by the Tribunal whether he would leave Australia voluntarily if the visa is cancelled, the applicant stated he will leave voluntarily. The Tribunal is satisfied it is highly unlikely the applicant will be detained.

30. The Tribunal notes the applicant’s evidence that he wishes to remain in Australia to complete the courses in which he is enrolled. However it is not persuaded he will complete those courses. He indicated he then wants to return to India. The Tribunal accepts that cancellation would have further consequences and these would limit the applicant’s options to immediately return to Australia or apply for a different kind of visa. However these are the intended and legitimate consequences of a visa cancellation. The applicant also said, once he leaves, he will not be coming back to Australia.

31. The Tribunal gives this consideration neutral weight.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation 

32. There are no children who would be affected by a visa cancellation.

33. When asked if the applicant fears returning to India, he indicated his brother will be angry and his mother should be in rest mode suggesting a visa cancellation might affect her. The applicant did not claim to fear harm in India except that he wants to finish his study. He said he wants to return to India after that.

34. There is 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.

35. The Tribunal gives this consideration neutral weight.

    Conclusion

36. The Tribunal has considered the applicant’s circumstances individually and cumulatively. There are several factors for which the Tribunal gives neutral weight. There are no factors which the Tribunal considers are favourable to the applicant. The Tribunal is satisfied that there are factors which favour it exercising its discretion to cancel the visa, being the circumstances in which the ground for cancellation arose, his purpose for remaining in Australia, and the extent of his compliance with visa conditions. The Tribunal notes the applicant’s claim to wish to remain in Australia to finish the courses in which he has enrolled but it is not persuaded he will do that, or that he has a compelling need to remain here. The Tribunal is not persuaded he will not be able to complete a management course in India. The Tribunal finds a period of 10 months of non-enrolment to be significant and it is not satisfied that he has adequately explained his non-compliance. It is of the view he only enrolled in courses in September 2023 to avoid visa cancellation. It finds the breach of condition 8202(2)(a) is significant as this condition goes to the core purpose of the grant of a student visa, that is, to study in Australia. The Tribunal accepts the applicant’s brother might be angry and a visa cancellation might affect his mother, particularly given the applicant has been in Australia since 2018 and has not completed a registered course, his reason for coming to Australia. however it is not satisfied any hardship the applicant or his family might suffer outweigh the factors in favour of cancellation.

37. Considering the circumstances overall, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Denise Connolly
    Senior 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.