Khan (Migration)

[2021] AATA 2156

Khan (Migration) [2021] AATA 2156 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anwar Ali Khan

CASE NUMBER:  1935161

HOME AFFAIRS REFERENCE:               BCC2019/3241521

MEMBER:L. Symons

DATE:29 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 29 March 2021 at 10:20am

CATCHWORDS
MIGRATION – cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant did not maintain enrolment in a registered course at AQF Level 9 – breached condition 8202 –poor record as a student in Australia – experiencing depression –no compelling need to remain in Australia –mental health condition – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 4 December 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 did not maintain enrolment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework (AQF) that was the same level as, or at a higher level than, the registered course in relation to which his Student visa was granted. On 12 December 2019, the applicant applied to the Tribunal for a review of that decision.

3. On 24 September 2020, the Tribunal wrote to the applicant and invited him to attend a hearing before the Tribunal on 29 October 2020. On 21 October 2020, the Tribunal received a request for the postponement of the hearing on the grounds of mental health. The request was granted.

4. The applicant appeared before the Tribunal on 2 March 2021 to give evidence and present arguments. The Tribunal also heard evidence from Mohammad Ethesham Khan, a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. 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 AND FINDINGS

7. The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8202(2)(b) 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?

8. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, condition 8202(2) requires that the applicant:

   ·be enrolled in a full time registered course: 8202(2)(a) and

   ·subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide 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: 8202(2)(b)

9. Subclause 8202(1) does not apply to the applicant as he was not a Defence, Foreign Affairs or secondary exchange student. Subclause 8202(3) does not apply to him as he was not enrolled in a registered course at AQF Level 10 (Doctoral degree).   

10. The applicant has filed with the Tribunal a copy of the decision of the Department of Home Affairs (the Department) made on 4 December 2019. It indicates that on 16 March 2018 he was granted a subclass 500 Student visa for the purpose of studying a Master of Professional Accounting degree (AQF Level 9) from at the Holmes Institute 12 March 2018 to 21 June 2019 and a Master of Business Administration degree (AQF Level 9) at the Holmes Institute from 15 July 2019 to 31 December 2019. This visa was subject to a number of conditions including condition 8202.  

11. On 9 April 2018, the applicant’s education provider cancelled his enrolment in the above courses. On 26 November 2018, he enrolled in a Certificate IV in Accounting and Bookkeeping, a Diploma of Accounting and an Advanced Diploma of Accounting at Southern Cross School of Business. On 11 January 2021, he enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management at the Institute of Global Education and Training Pty Ltd trading as Salisbury College. The highest of these enrolments was an Advanced Diploma of Accounting which is at AQF Level 6 (Advanced Diploma).

12. On 9 October 2019, the delegate sent the applicant a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he appeared to be in breach of condition 8202(2)(b) of his Student visa as he was not enrolled in a registered course that, once completed, would provide him with a qualification from the AQF that was at the same level as, or at a higher level than, the registered course in relation to which the Student visa was granted. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled. On 5 November 2019, he provided the Department with a response to the NOITCC.

13. In his response to the NOITCC, the applicant stated that he only realised that he had breached a condition of his Student visa after he received the NOITCC. The Department subsequently cancelled his Student visa on 4 December 2019.

14. During the hearing, the applicant agreed that he had not complied with condition 8202(2)(b) of his Student visa because his enrolment in the Master of Professional Accounting degree (AQF Level 9) and the Master of Business Administration degree (AQF Level 9) was cancelled on 9 April 2018 and he thereafter did not maintain enrolment in a registered course at AQF Level 9.

15. There is no evidence before the Tribunal to indicate that the applicant enrolled in a registered course that, once completed, would provide him with a qualification that was at the AQF Level 9 or higher after the cancellation of his enrolment in the Master of Professional Accounting degree (AQF Level 9) and the Master of Business Administration degree (AQF Level 9) on 9 April 2018.

16. On the evidence before it, the Tribunal finds that the applicant has not complied with condition 8202(2)(b) of his Student visa.

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of his Student 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’.

    Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling      need to travel to or remain in Australia?

18. The applicant gave evidence that his purpose in coming to Australia was to study, obtain a Master of Business Administration degree and return to India. Everything here was new to him, he had no friends and was alone. When asked why he did not return to India if it was too difficult for him to study in Australia, he responded that his parents wanted him to study in Australia and be a success and not return to India as a loser. 

19. The Tribunal asked the applicant whether there was any reason why he now needed to remain in Australia. He responded yes as he needs to study and fulfill his parents’ dream. He does not want to return to India as a loser and upset his parents. He wants to finish his studies and get a good job. He wants to get married. He is now studying hospitality management because he wants to open his own restaurant in India. When the Tribunal pointed out that he did not need to have a Diploma in Hospitality Management to open a restaurant, he responded that he wants a qualification to show his parents.

20. The records of the Department of Education’s Provider Registration and International Student Management System (PRISMS) indicates that the applicant enrolled in a Master of Business Administration degree from 23 March 2015 to 31 December 2016. His enrolment in that course was deferred on 4 August 2015 due to compassionate or compelling circumstances. He then enrolled in two Master of Business Administration degrees both from 17 November 2015 to 31 March 2017. His enrolment in the first course was cancelled on 25 November 2015 due to non-commencement of studies and his enrolment in the second course was deferred on 15 December 2015.

21. The PRISMS record indicates that the applicant then enrolled in a Master of Business Administration from 21 March 2016 to 31 March 2017. His enrolment in that course was cancelled on 30 August 2016 for unsatisfactory course progress. He then enrolled in a Diploma of Business from 11 July 2016 to 9 July 2017. His enrolment in that course was cancelled on 20 July 2016 for non-commencement of studies. He then enrolled in a Master of Professional Accounting from 7 November 2016 to 31 December 2017. He then enrolled in an Advanced Diploma of Business from 10 July 2017 to 6 January 2017. His enrolment in that course was cancelled on 20 July 2016 for non-commencement of studies.

22. The PRISMS record indicates that the applicant then enrolled in a Master of Business Administration from 15 January 2018 to 13 December 2019. His enrolment in that course was cancelled on 9 February 2018 because he notified his education provider that he was ceasing his studies. He then enrolled in a Master of Professional Accounting from 12 March 2018 to 21 June 2019. His enrolment in that course was deferred on compassionate grounds on 9 April 2018. He then enrolled in a Certificate IV in Accounting and Bookkeeping from 26 November 2018 to 22 November 2019.

23. The PRISMS record indicates that the applicant then enrolled in a Master of Business Administration from 15 July 2019 to 31 December 2019. His enrolment in that course was cancelled on 9 April 2018 for non-commencement of studies. He then enrolled in a Diploma of Accounting from 6 January 2020 to 1 January 2021 and an Advanced Diploma of Accounting from 1 February 2021 to 29 July 2022. His enrolment in these courses was cancelled on 7 February 2020. He then enrolled in a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management from 11 January 2021 to 10 July 2022 and his enrolment in the Certificate IV in Commercial Cookery was cancelled.

24. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that these records indicate that he has a very poor record as a student in Australia since his arrival here on 24 February 2015. The PRISMS record indicates that the only courses he has completed are a General English course and a Certificate IV in Accounting and Bookkeeping. (His evidence to the Tribunal is that he has not completed any course in Australia). The Tribunal noted that this may lead it to the conclusion that he has not fulfilled the purpose for which the Student visa was granted to him and his Student visa should be cancelled.  

25. The applicant responded that he is happy to study but cannot handle stress and study. His girlfriend gave him a hard time. He wants to study, be successful and go home.

26. The records of the Department indicate that the applicant first arrived in Australia on a Student visa on 24 February 2015. He departed Australia on 4 November 2017 and returned on 9 December 2017. He departed Australia again on 29 November 2018 and returned on 20 January 2019. He provided a Statutory Declaration and a number of supporting documents to the Department in response to the NOITCC. One of those documents was a Doctor’s Certificate from Hyderabad dated 6 November 2015 stating that his mother was admitted to the Intensive Care Unit (ICU) in a critical condition. He used this Doctor’s Certificate to obtain a determent of his Master of Business Administration degree. However, he did not travel to India to see his mother who was supposedly critically ill in ICU.

27. Another document the applicant provided the Department was a Medical Certificate from a Dr Jamal Rifi dated 4 April 2018 stating that he had mental health issues and needed to travel home for a month. He used this Medical Certificate to obtain a deferral of his Master of Professional Accounting degree. However, he did not travel home to India for a month in April 2018. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that this may lead it to the conclusion that he had not been honest in his dealings with his education providers and had manipulated the system to achieve his desired outcomes. The Tribunal noted that it may find that there were no compassionate reasons for why his Student visa should not be cancelled.  

28. The applicant responded that when his mother was sick he tried to go (to India) but his father told him not to return. His father told him to just study. On the second occasion, he needed a break from college and wanted to go to India so he obtained the letter. His parents told him not to return to India and to just study. When the Tribunal pointed out that he did not study, he responded that he had wife issues. She always gave him a headache by calling him and wanting to meet. He told her to leave him alone as he wanted to study. He wanted to make his parents happy but she gave him a hard time.

29. When asked whether he was currently studying, the applicant responded that he was studying a Diploma. At the hearing, he provided the Tribunal with a Confirmation of Enrolment issued by Salisbury College Australia in relation to a Diploma of Hospitality Management from 11 January 2021 to 10 July 2022. He gave evidence that he had undertaken an IELTS test and obtained a score of 5. The Tribunal raises an issue with him it’s concerns that, if his Student visa is not cancelled, he does not have sufficient English language proficiency to be able to undertake a Master’s degree in Australia. He responded that he can study and show his progress if given a chance. He does not want to lose his future. He wants to be successful and make his parents happy.

30. Having considered all the evidence, the Tribunal is of the view that the applicant’s poor record as a student in Australia weighs heavily against him. The Tribunal is not satisfied that he has fulfilled his purpose in coming to Australia. The Tribunal notes his evidence that he is currently studying a Diploma of Hospitality Management which is at a lower AQF Level than required for the Student visa he was granted. In view of his poor record as a student in Australia and his IELTS test results, the Tribunal has no confidence that he will complete this course let alone successfully complete a Master’s degree. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia.

31. The Tribunal gives this consideration little weight in the applicant’s favour. 

    Circumstances in which the ground for cancellation arose

32. In his response dated 5 November 2019 to the NOITCC, the applicant stated that he had difficulty studying at the Master’s degree level in Australia because he had insufficient English language skills. He then undertook a General English course at the Southern Cross School of Business and completed it. However, he was still unable to progress his studies and this caused him stress and led to him developing symptoms of anxiety. In January 2017, his General Practitioner referred him to a Psychologist. In February 2017, he saw Mr Stephen Sutton, Psychologist, and obtained a report from him.

33. In his response dated 5 November 2019 to the NOITCC, the applicant stated that in March 2018 he renewed his Student visa. In 2018, he began to experience symptoms and saw his General Practitioner who recommended that he visit his family in India. He realised that instead of starting his studies at the Master’s degree level he should have started at the grass roots level so he enrolled in a Certificate IV, a Diploma and an Advanced Diploma in Accounting. He is now able to understand the classes. He is depressed because his education agent did not inform him that he could not change his courses under his current Student visa. 

34. In his response dated 5 November 2019 to the NOITCC, the applicant stated that he only realised that he had breached a condition of his Student visa after he received the NOITCC. His current Student visa expires on 15 March 2020 and he has a month to complete his Certificate IV in Accounting. He hopes to complete his Diploma and undertake a Master’s degree. He travelled to Australia to obtain a Master’s degree. If his Student visa is cancelled, he would not be able to continue his studies in Australia.

35. The applicant provided the Department with a Psychological Report dated 3 February 2017 from Mr Stephen Sutton, Psychologist, with his response to the NOITCC. Mr Sutton stated that the applicant’s parents are willing and able to pay for his academic fees and living expenses in Australia. He is concerned about being a burden on his parents and expected to get a part-time job to pay for his living expenses to ease the burden on his parents. He failed four out of four subjects in his Master of Business Administration degree because he was unable to focus on his studies as he was feeling stressed and depressed at his inability to obtain a part-time job and ease the burden on his parents. He was also feeling homesick and missed his family and friends in India.

36. Mr Sutton reported that the applicant did not enrol in the following semester as he was unable to cope. He obtained a deferment from his university to return to India for a semester. He did not return to India as he felt like a failure and could not face his family. He felt he was responsible for breaking his family’s dream, was consumed with guilt and sank into depression. He felt confused and depressed and unable to do anything about his dilemma. He was too ashamed to tell his parents. He was able to get a job in November 2015. His father paid for his fees in the following semester and he passed one out of four subjects. In the next semester he passed two out of three subjects and in the following semester he failed two out of two subjects.

37. Mr Sutton reported that the applicant sought the services of a Student Consultant to help him to sort out his problems as his visa was due for renewal. He was referred to him to obtain a report to help explain his situation at the time. He stated that he reports still having moderate to severe symptoms of anxiety, stress and depression.

38. During the hearing, the applicant gave a different explanation for why he has not been enrolled in a registered course at AQF Level 9 or higher since 9 April 2018. He stated that he was “ happy to study” his Master’s degree but was “literally disturbed” by his wife. She always called him and gave him a headache. She always asked him to get married. He wanted to try and complete his course. If he does higher studies he can return to India and get a good job. His father had a job overseas and always said his son is going overseas. His father told him that when he returns to India, he wants him to be a success. His mother always asks him to make her happy.

39. The Tribunal asked the applicant whether his evidence now is that he has not been enrolled in a AQF Level 9 registered course since 9 April 2018 because he was disturbed by his wife and could not study. He responded yes. His evidence is that he first met his wife in 2017. She was a student at that time. He decided to get married in January 2019 and was married on 26 July 2019. His parents obtained visas and attended his wedding in Australia.

40. The applicant gave evidence that he and his wife separated on 10 February 2020. At that time, the Police obtained an Apprehended Violence Order (AVO) for his wife’s protection and charged him with a number of offences. He loves his wife and is innocent of the complaint she made to the Police. She fabricated that complaint. He attended Court on one occasion. The Police subsequently withdrew the AVO and charges.

1. The applicant provided the Tribunal with a copy of his Marriage Certificate which indicates that he got married on 26 July 2019. He also provided the Tribunal with a letter dated 27 March 2020 which indicates that he gave his wife a “valid Islamic reason” on 27 March 2020 and they are ”Islamically divorced”. He gave evidence that his application for a divorce is listed before the Family Court on 11 March 2021.  

2. The Tribunal asked the applicant whether he consulted a Student Counsellor at his college in relation to the problems he was having with his studies and he responded no. When asked whether he spoke to the Department about the problems he was having with his Student visa prior to receiving the NOITCC, he responded no.

3. The Tribunal heard evidence from the applicant’s friend, Mohammad Ethesham Khan. He stated that he knew the applicant in India. The applicant wanted to study a Master’s degree and attended university for two semesters. He did not continue because he had issues with the girl he lived with. He met his wife in 2017 and they got married in 2019. He went through mental stress because of what happened during his married life. He has not met the applicant’s wife even though he attended their wedding.

4. Mohammad Ethesham Khan gave evidence that the applicant studied his Master’s degree until 2016 and then planned to become a chef. When asked whether he had already stopped studying his Master’s degree before he met his wife (in 2017), he responded probably. He had nothing else to add.

5. The applicant provided the Tribunal with a Psychological Report dated 23 February 2021 prepared by Ms Melak Haydar, Psychologist. Ms Haydar reported that the applicant was administered the DASS 21 questionnaire and scored in the extremely severe range for depression, anxiety and stress. She stated that this scale is not a categorical measure of clinical diagnoses. He reported experiencing symptoms that were triggered by a domestic violence incident between him and his wife.

6. Ms Haydar stated that the applicant reported being married for a period of seven months and on 11 February 2020 his wife made false allegations of domestic violence to the Police. This resulted in an AVO and charges which were subsequently dropped several months later. He reported that the alleged incident had a significant impact on his mental and physical health. He reported that his visa was revoked as a result of the incident. His future aspirations were to complete his studies and have a prosperous future in Australia. He reported feelings of hopelessness and helplessness due to concerns for his future prospects and studies.

7. The Tribunal has had regard to the evidence given by Mohammad Ethesham Khan. He is a friend of the applicant, is not an independent witness, has not met the applicant’s wife and is relying on the applicant for information about his wife. The Tribunal places no weight on his evidence.

8. The Tribunal raised a number of issues with the applicant. The Tribunal noted that he provided the Department with a Statutory Declaration dated 5 November 2019 in response to the NOITCC in which he gave one explanation for why he breached condition 8202(2)(b) of his Student visa (insufficient English language proficiency - see paragraphs 32 and 33 above). He gave Mr Sutton a different explanation for why he breached condition 8202(2)(b) of his Student visa (stress over inability to get a job and homesick - see paragraphs 35 and 36 above). He gave Ms Haydar (and the Tribunal) a third explanation for why he breached condition 8202(2)(b) of his Student visa (he was disturbed by his wife and could not study -see paragraphs 45 and 46 above). The Tribunal noted that this may lead it to the conclusion that he is not a witness of truth and his evidence could not be relied on.

9. The applicant responded that he saw Mr Sutton once a long time ago. He saw Ms Haydar once after his marriage. His response did not explain the inconsistencies in his evidence in relation to why he breached condition 8202(2)(b) of his Student visa. The Tribunal accepts that the Psychological Report from Mr Sutton was dated 3 February 2017, his Statutory Declaration was dated 5 November 2019 and the Psychological Report from Ms Haydar was dated 23 February 2021 and that considerable time had passed between the preparation of each of these documents. However, the applicant’s problem’s with his studies commenced in 2015 which was long before he met his wife or saw Mr Sutton. His breach of condition 8202(2)(b) of his Student visa commenced on 9 April 2018 which was long before his date of marriage on 26 July 2019. He was issued the NOITCC on 9 October 2019 and responded by way of his Statutory Declaration dated 5 November 2019 which was after his marriage on 26 July 2019.

10. The Tribunal raised as an issue with the applicant the fact that he had problems with his studies in Australia long before he even met his wife yet blamed her for his failure to comply with condition 8202(2)(b) and told Ms Haydar that she was responsible for the cancellation of his Student visa. He responded that he wanted to study but how could he. He did not know what to do. The Tribunal raised as an issue with him its concern that he was not taking any responsibility for the situation he was in. He responded that he was disturbed in his mind.

11. Having considered all the evidence, the Tribunal accepts that the applicant had difficulty adjusting to the Australian education system, was homesick and missed his family and friends in India. The Tribunal considers that this is not an unusual situation for international students in Australia or one that was out of his control. The Tribunal accepts that he did not have the English language proficiency to be able to undertake a Master’s degree in Australia. The Tribunal is of the view that this was the primary reason for his poor record as a student.

12. The Tribunal accepts that the applicant may have wanted to work in Australia and pay for his fees and living expenses, or at least contributed towards them, and became stressed and depressed when he was unable to do so for some time. The Tribunal notes, however, that a criterion for the Student visa is that he had the financial capacity to pay for his fees and living expenses in Australia. The Tribunal does not accept that this was a situation out of his control.

13. The Tribunal accepts that the breakup of the applicant’s marriage and the events that followed may have been emotionally distressing for him and had a psychological impact on him. The Tribunal notes, however, that his problems with his studies commenced long before he met his wife. His breach of condition 8202(2)(b) of his Student visa commenced on 9 April 2018 and continued thereafter. This was long before his marriage on 26 July 2019 and his subsequent separation on 10 February 2020. The Tribunal does not accept that his breach of condition 8202(2)(b) was caused by his wife.

14. The Tribunal gives this consideration no weight in the applicant’s favour. 

    The extent of compliance with visa conditions

15. The applicant was granted the subclass 500 Student visa on 16 March 2018 for the purpose of studying a Master of Professional Accounting degree (AQF Level 9) and a Master of Business Administration degree (AQF Level 9). He has not been enrolled in a registered course that, once completed, would provide him with a Master’s degree or a higher degree since 9 April 2018. This is a substantial period of time during which he was in breach of condition 8202(2)(b) of his Student visa.

16. The Tribunal noted that he had not been enrolled in an AQF Level 9 course for a considerable period of time and asked the applicant what his plan was if he had not received the NOITCC. He responded that he was enrolled in a Diploma. When the Tribunal pointed out that his Student visa was not granted for that purpose, he responded that he was unable to decide and was disturbed. When he received the Student visa, he did not know what course to do. When asked if he had breached any other condition of his Student visa, he responded that he had not.

17. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa.

18. The Tribunal gives this consideration no weight in the applicant’s favour.    

    Degree of hardship that may be caused

19. In his response dated 5 November 2019 to the NOITCC, the applicant stated that if he returns to India without an Australian qualification it would be difficult for him to get a job or enrol in a course in India. There are also cultural issues as he will be treated as a loser in the community and he will not be able to cope with the stress. Without an international degree he will face undue hardship if he returns without any achievement. He has not informed his family of the change in his course and the cancellation of his Student visa. He is ashamed to tell them and it would cause him and them more stress.

20. In his response dated 5 November 2019 to the NOITCC, the applicant stated he has broken his family’s dream and feels guilty and depressed. If he is given a chance to complete his current course and then enrol in the higher education sector, he will be able to return to India and make his parents proud of him. The cancellation of his Student visa will impact his status in Australia and his immediate and long term future.

21. During the hearing, the Tribunal asked the applicant what hardship would be caused to him if his Student visa remains cancelled. He responded that it is difficult and there is “too much situation” in his head. If his Student visa is cancelled again, he will disappear. He does not know what to do. He wants to be a success. He has already lost his wife and his Student visa.    

22. Having considered all the evidence, the Tribunal accepts that the applicant’s parents have invested a considerable amount of money in his education in Australia and that it would have an emotional and financial impact on them if his Student visa is cancelled. The Tribunal accepts that the cancellation of his Student visa would have an emotional and psychological impact on the applicant particularly as he feels that he has not fulfilled his parents’ dream, has failed in his marriage, has not advanced his plans for his future and fears facing derision from the community on his return to India.    

23. The Tribunal gives this consideration weight in the applicant’s favour.    

    Past and present behaviour of the applicant towards the Department

24. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that he has engaged in unfavourable behaviour towards the Department.

25. The Tribunal gives this consideration some weight in the applicant’s favour.  

    Whether there would be consequential cancellations under s.140 of the Act

26. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act.

27. The Tribunal gives this consideration no weight in the applicant’s favour.

    Legal consequences of a decision to cancel the visa

28. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. 

29. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa.

30. The Tribunal gives this consideration no weight in the applicant’s favour.   

    Australia’s international obligations

31. The Tribunal asked the applicant whether there was any reason why he could not return to India. He responded that he wants to study, return to India and get married. 

32. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations.

33. The Tribunal gives this consideration no weight in the applicant’s favour.

    Any other relevant matter

34. The Tribunal asked the applicant whether there was any other reason why his Student visa should not be cancelled. He responded that he wants to study and return to India as a successful man and not as a loser.

35. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

36. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling his Student visa. Therefore, the Tribunal concludes that the Student visa should be cancelled.

    DECISION

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

    L. Symons
    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.