Khan (Migration)

[2020] AATA 5662

Khan (Migration) [2020] AATA 5662 (16 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Shahbaz Khan

CASE NUMBER:  1935607

HOME AFFAIRS REFERENCE(S):          BCC2019/3388181

MEMBER:Frank Russo

DATE:16 December 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 December 2020 at 11:40am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – genuine student – study history – significant lack of academic progress – repeatedly obtaining new enrolments – consistent failure to participate in courses – lacked a logical and coherent study path – non-disclosure certificate – anonymous allegations made to the Department – working for over 80 hours a week – consideration of discretion – purpose of visa not fulfilled – technically maintained enrolment requirements – no meaningful progress towards achieving a qualification – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 375A

Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 December 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) of the Act on the basis that the applicant is not, or is likely not to be, a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant is a 26-year-old national of Pakistan.

4. The applicant appeared before the Tribunal on 8 July 2020 to give evidence and present arguments.

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

7. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

8. In addition to the application form and copy of the delegate’s reasons for decision, the applicant provided the Tribunal with a number of additional documents including:

   a.A completed ‘Request for Student Visa Information’ form, dated 19 June 2020;

   b.Letter from Aspen College, dated 30 June 2020, regarding confirmation of enrolment in Certificate III in Light Vehicle Mechanical Technology;

   c.Membership certificate of Mas International Trading to the Karachi Chamber of Commerce & Industry;

   d.Submissions from the applicant’s agent, sent on 29 June 2020 (attaching submission dated 23 June 2020), together with a number of attachments, including a letter of intent from the applicant provided to the Department in response to the Notice of Intention to Consider Cancellation (NOICC) of the visa, transcript for the Diploma of Leadership and Management from George Brown College, completion letter from Salford College for the English Preparation for Academic Studies Program, Certificate III in Security Operations issued by Elite Training Institute, Statement of results for Bachelor of Community Services, dated 12 November 2019, and another copy of membership certificate for Karachi Chamber of Commerce & Industry;

   e.Email submission from applicant’s agent, dated 8 July 2020;

   f.Submission from the applicant’s agent, provided on 27 July 2020, together with a number of attachments, including a letter from Mas International Trading, handwritten medical notes from Ibn-e-seena Hospital Complex dated 5 August 2016 and 8 September 2017, and from Dr (Capt) Abid Hussain on 14 July 2018, statement of attainment from Aspen College, dated 24 July 2020, Confirmations of Enrolment (CoE) for the Graduate Diploma of Management (Learning) at Alpha College and a carsales.com.au purchase history;

   g.On 28 October 2020, the applicant’s agent provided a further written submission in response to a copy of a non-disclosure certificate issued by the Department under s.375A of the Act and information put by the Tribunal to the applicant using the procedure set out in s.359A of the Act. The applicant’s agent subsequently provided further emails on 5 November and 9 November 2020, the latter email also attaching two bank statements and a land sales agreement.

9. The Tribunal has had regard to these documents. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

   Does the ground for cancellation exist?

   s.116(1)(fa) - not a genuine student

10. A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

11. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions … yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

12. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

    Delegate’s findings

13. The delegate’s findings are set out in the delegate’s decision record, a copy of which the applicant provided to the Tribunal. According to the delegate’s reasons, the applicant arrived in Australia holding a Student visa on 29 July 2015 for the purpose of studying a Bachelor of Business. The visa ceased on 17 July 2018. He was granted a second Student visa on 17 July 2018 to undertake study towards a Bachelor of Community Services.

14. The delegate noted that the applicant’s enrolment in the Bachelor of Business was cancelled due to non-commencement of studies on 7 August 2015. On 8 October 2015 he again enrolled in a Bachelor of Business, however this enrolment was cancelled due to a change to a course in the same sector of study on 8 December 2015. He obtained a third enrolment in a Bachelor of Business on 8 December 2015, however this enrolment was cancelled on 7 March 2016 for non-commencement of studies.

15. On 10 April 2017 the applicant completed a Diploma of Leadership and Management. On 8 June 2017, instead of completing the Advanced Diploma of Leadership and Management, he transferred to a course at another level to study an Advanced Diploma of Accounting. However his Confirmation of Enrolment (CoE) for this course was cancelled on 5 March 2018 due to cessation of studies. On 8 May 2018 the applicant completed an English course.

16. On 7 May 2018 the applicant commenced studying the Bachelor of Community Services, however his enrolment was cancelled for non-payment of fees on 31 August 2018. The delegate’s reasons note that the education provide (Acknowledge Education Pty Ltd) indicated that the applicant did not choose to access the Complaints and Appeals process.

17. The applicant obtained a further two enrolments in the Bachelor of Community Services on 3 October 2018 and 21 December 2018, both of which were cancelled. The most recent CoE was cancelled on 2 May 2019 due to the applicant advising of the cessation of his studies.

18. The delegate’s reasons state that between 12 April 2019 and 31 August 2019 the applicant obtained the following enrolments in ‘a new study pathway’:

    a.Graduate Diploma of Management (Learning) at Wakefield International Business School from 16 December 2019 to 13 December 2020;

    b.Certificate IV in Automotive Mechanical Diagnosis at Macallan College from 1 June 2020 to 30 May 2021;

    c.Certificate III in Light Vehicle Mechanical Technology at Macallan College from 6 May 2019 to 3 May 2020; and

    d.Certificate III in Security Operations at Elite Training Institute from 12 April 2019 to 1 June 2019.

19. The delegate found that based on his enrolment information and other information before the delegate, including a Genuine Temporary Entrant (GTE) letter, the applicant is not, or is not likely to be, a genuine student on the following basis:

    a.What the delegate described as ‘significant lack of academic progress and consistent failure to participate in courses’, which the delegate considered indicated that the applicant’s primary intention is not, or is likely not to be, to undertake study;

    b.That despite repeatedly obtaining new enrolments, the applicant had not made meaningful progress towards achieving a qualification at the level for which the visa was granted. The delegate considered that the applicant was obtaining enrolments for the purpose of retaining the Student visa, rather than because of a genuine intention to study;

    c.While the applicant arrived in Australia on a Student visa on 29 July 2015, he did not commence a course of study until 11 April 2016;

    d.That since his arrival as a student, the applicant had completed a range of short-term courses which ‘do not reflect a linear study program’. The delegate considered the applicant’s study history demonstrated unsatisfactory course progress and lacked a logical and coherent study path;

    e.While the delegate noted the applicant had completed a Certificate III in Security Operations, a Diploma of Leadership and Management and an English preparation course, these courses were completed over a period of 16 months, whereas the applicant had been in Australia since 29 July 2015, which at the time of the delegate’s decision, was a period of 53 months;

    f.The delegate noted the applicant’s enrolment in a Bachelor of Community Services for a period of 10 months. The delegate considered the transcript of results the applicant had submitted for this course, which indicated that he had attempted three units, for which he had received results of 32%, 52% and 55%, and considered that this information contradicted the applicant’s claim that he was a hard-working student with a passion to study;

    g.That the Student visa had been granted for the purpose of study at the Bachelor level (AQF Level 7), and his enrolment at the time of the decision indicated that he would not commence a Bachelor level course before his visa was due to cease on 28 April 2021. Although the applicant had obtained a CoE for a Graduate Diploma of Management for the period 14 June 2021 to 12 June 2022, his enrolment would not commence before his visa was due to cease. The delegate considered that the applicant’s enrolment in this course was prompted by the NOICC issued on 8 November 2019; and

    h.That while the applicant claimed he had admission to a Bachelor of Community Services, commencing on 18 May 2018, the applicant took a semester break in July 2018 and travelled to Pakistan, that he forgot to pay tuition fees, and upon his return to Australia his enrolment was cancelled. The delegate noted that a fresh CoE was issued on 21 December 2018, however it was cancelled on 2 May 2019 because the studied notified his education provider of the cessation of his studies; and

    i.The delegate acknowledged that at the time of the decision the applicant was enrolled in automotive courses.

20. The delegate’s decision record notes that the applicant did not agree that there were grounds for cancellation of his visa.

21. At the hearing, the applicant confirmed that he does not agree that there are grounds for cancellation of the visa. The applicant stated that he accepted he had made many mistakes, but indicated that the current automotive courses that he is enrolled in are his final courses and he intends to complete them.

    Applicant’s oral evidence regarding his enrolment history

22. The applicant gave evidence that he first arrived in Australia on 2 August in 2015 with the plan of undertaking ‘Business Management’ (the delegate’s decision record notes his first Student visa was granted for study for a Bachelor of Business, and this information was taken from the applicant’s enrolment information in his Provider Registration International Student Management System (PRISMS) record). The applicant stated that his course had started two weeks before his arrival in Australia, and that he was very stressed. He stated that he went to the college and requested a deferral of his studies for the semester given this late start. He stated that this was approved and the next start date was in November 2015.

23. The applicant stated that he commenced classes and attended exams for the Bachelor of Business in February 2016, but when he checked his results, he found that his education provider, Group Colleges Australia, indicated that he was absent during the exams. The applicant told the Tribunal that he was confused and was not sure what had happened. He stated that he was depressed and nervous, and that he had just come from overseas. The applicant stated that the biggest mistake he had made was that he did not ask why he had been recorded as absent during the exams. He stated that he did not know how to handle this at the time, but he spoke to a consultant, who advised him to seek enrolment with another college.

24. The applicant stated that following this he enrolled in a Diploma of Leadership and Management at George Brown College, which he completed in 2017.

25. The applicant stated that after this he wanted to do something related to business. He stated that his agent suggested that he continue his studies with an Advanced Diploma of Accounting, which he enrolled in 2017. The applicant told the Tribunal that this ‘was another unlucky thing’. He stated that he submitted every assignment, however in the middle of his studies there were changes to the college’s ownership, teachers and systems. He stated that the college did not have an online account system, and instead assignments were sent by email. He stated that the college’s new management did not know what was going on, and that they asked a couple of times where things were up to with his assignments. The applicant told the Tribunal that he had submitted his assignments, but was told by the college that he had not. The applicant stated that he could not understand the staff. He stated that he was not very focused at the time. He stated that he tried to continue with his studies, but the problem kept occurring and he was not satisfied with the system, and felt that he was wasting his time and money.

26. The applicant stated that he sought advice from his education consultant, who advised that he could switch his course and college. The applicant stated that in the meantime he decided to continue with this course. He stated that his mother was sick in Pakistan and that he went to visit her.

27. The applicant told the Tribunal that when he returned from Pakistan (in September 2017) he wanted to do a course which might help his mother, who was ill at the time, so he switched to a Bachelor of Community Services. He stated that before he could commence this he needed to do an English language course as his English skills were not sufficient.

28. The applicant stated that he was interested in the Bachelor of Community Services, the college was professional and he was doing well. He stated that he studied three units, of which he only passed two. He stated that after the first semester ended, he returned to Pakistan in August (2018). He stated that when he returned to Australia he could not make up his mind about what he wanted. He stated that he tried to continue with the course, but it wasn’t the work that he was looking for. He stated that he was confused and couldn’t focus. He stated that his father is in the automotive business and imports car parts. He stated that this is also a big interest of his, and that he is a fan of cars and of modifications.

29. The applicant gave evidence that a friend of his had suggested to him that the automotive field would be the best field for him, as all of his friends come to him to get their cars fixed and to get modifications, and that it would connect him to his family’s business. The applicant stated that he wanted to study something which would excite him, which is why he chose Automotive Studies. The applicant stated that he would be more interested in this field and he could make a professional life out of it. He stated that if he wants a degree he can get one in Pakistan.

30. The applicant stated that he commenced Automotive Studies at Macallan College in May 2019, however the college did not have the proper equipment and materials. He stated that the classes were ‘not proper’, and that sometimes they consisted of just theory, and sometimes just practical work.

31. The applicant stated that he wanted to complete the Automotive courses as soon as possible, as he feels that he had wasted so much time and could not return to his home country without any achievements. He stated however that when he received the Notice of intention to consider cancellation (NOICC) of his Student visa from the Department, Macallan College cancelled his CoE. He stated that he tried to obtain enrolment at another college, but in the meantime his IELTS score was also ‘cancelled’. He stated that he tried to enrol again, but his ability to do so was affected by COVID-19.

32. At the time of the hearing the applicant was enrolled in the following courses:

    a.Certificate III in Light Vehicle Mechanical Technology at Aspen College, with a start of 13 April 2020 and an end date of 11 April 2021;

    b.Certificate IV in Automotive Mechanical Diagnosis at Aspen College, commencing on 19 April 2021 and ending on 17 April 2022; and

    c.Graduate Diploma of Management (Learning) at Wakefield Business College, commencing on 14 June 2021 and ending on 12 June 2022.

33. The applicant told the Tribunal that he made the decision that he needs to complete his Automotive courses at Aspen College and that he has submitted 12 ‘assignments’. He stated that he is planning to finish his studies and then return to his come country.

34. As to why he has enrolled in both the Automotive courses and the Graduate Diploma of Management (Learning), the applicant stated that the Graduate Diploma is the way he can start a business. He stated that he plans to start his own garage in his home country. He stated that the Graduate Diploma is a separate course and he wants to study this concurrently with the Automotive courses because he does not wish to waste any more time.

35. As to why he has not enrolled in the Graduate Diploma with an earlier start date, the applicant stated that he did not want to give himself stress, and that he asked the college to give him a new CoE for this course so that he can start it after he completes the Certificate III course. He stated that he knows about cars, but he would be more confident if he can complete the Certificate III first and then do the Graduate Diploma at the same time as the Certificate IV.

1. The applicant also gave evidence that he completed a two-week security course in 2019 for his own ‘personal use’.

   Applicant’s written submission following hearing

2. Following the hearing the applicant’s representative provided a written submission dated 23 June 2020, in which Mr Chaudhry states that the applicant had informed him after ‘the interview’ that he found it hard to articulate his case properly over the phone, and that this was due mainly to the hearing not being face-to-face. Mr Chaudhry stated that the applicant had informed him that he could not properly state and explain the facts relevant to his matter, and that in hindsight he should have requested an interpreter. He stated that the applicant had therefore requested that he provide further clarification on issues raised at the hearing. The following submissions were made:

   a.That the applicant changed course providers, but he could not state these reasons properly during the hearing. The applicant claims that he left the Bachelor of Business at Group Colleges Australia because the course content and teaching methods were not proper, and that he suffered personal issues in getting used to student life in Australia and missed his family in Pakistan. The applicant claims that he sat the first semester exam in February 2016, but when the results were published, his attendance was marked as absent in the exam. The applicant claims that he was confused about this, and that he sought advice from an education agent, who advised him not to waste time making a complaint and to instead find a new education provider.

   b.The applicant claims that as he had only been in Australia for 6 months at the time, he did not pursue the matter as he was not sure how and where to seek redress;

   c.Following completion of the Advanced Diploma of Leadership and Management, the applicant claims that he sought to do the Advanced Diploma of Accounting at International Institute for Professional Development, however he had to change course providers because its management and staff changed, and that he thought thereafter the course was not run properly;

   d.The applicant claims that after this he was unsure which path to take as he was confused, and that his agent advised him to do the Bachelor of Community Services. The applicant claims that his mother fell sick during this time and that he had to go to Pakistan. The submission states that the applicant did not feel enthusiasm for the course, although he tried his best, and that he believed he could do better with technical courses than courses in the humanities;

   e.The applicant claims that he met a friend who was doing a course in automotive technology, and that he felt this was the right path for him as he has a long-held passion for cars. The applicant claims that he enrolled in Macellan College to do the Certificate III in Light Vehicle Mechanical Technology, but the college was not effective in providing student support or study materials, that there was no online assessment account and practical sessions did not meet quality standards. As a result he changed course providers to Aspen College;

   f.The applicant claims that he has completed 19 units of the Certificate III in Light Vehicle Mechanical Technology, although the submission notes that the Statement of Attainment attached shows only 15 completed units;

   g.That after he completes the Certificate III he has enrolments for the Certificate IV in Automotive Mechanical Diagnosis and the Graduate Diploma of Management, commencing in April 2021 and June 2021 respectively, and that he is determined to complete both courses even if they overlap, and that he does not want to waste time and money unnecessarily anymore.

   h.That the applicant completed the Certificate III in Security Operations due to his personal interest and also to find a casual job;

   i.That he first obtained the CoE for the Diploma of Management at Alpha College in September 2019, to commence in December 2019, and thus it was obtained before he received the NOICC. The submission states that the applicant was already enrolled in the Certificate III in Light Vehicle Mechanical Technology, and that he then advised his agent that he needed time to concentrate on the Certificate III course and to obtain a CoE for the Graduate Diploma for a later date (currently to commence in June 2021);

   j.That the applicant claims he is a genuine student who intends to acquire his qualifications to assist him with his career in Pakistan, and that he intended to study without interruption, however these intentions could not prevail because of his personal circumstances and those of his family, as well as dissatisfaction with course providers and course content. The applicant claims that he lost money in changing course providers and courses and is disappointed that he could not follow his studies uninterrupted and could not find the correct course for him till now. He claims that he is fully satisfied with his current course provider and his chosen area of study, and that he has shown perseverance and dedication once he is in the right course.

3. In addition, the following attachments were provided:

   a.Letter from Mas International Trading;

   b.Medical evidence regarding the applicant’s father;

   c.Statement of Attainment from Aspen College;

   d.Two CoEs from Alpha College; and

   e.Purchase history from carsales.com.au.

   Non-disclosure certificate and adverse information put to the applicant under s.359A

4. On 16 October 2020, the Tribunal wrote to the applicant to inform him that on 8 October 2020 the Department had issued a non-disclosure certificate pursuant to s. 375A of the Migration Act 1958 in relation to a document on the Department file. The Tribunal advised that it had not yet decided whether the certificate had been validly issued, however it attached a copy of the certificate and invited the applicant to provide submissions as to its validity. It invited submissions or a response by 2 November 2020.

5. The Tribunal also indicated that it was exercising its discretion under s 376(3) to disclose to the applicant the information that was the subject of the certificate. Using the procedure set out in s.359A of the Act, the Tribunal put the following particulars of the information to the applicant:

   a.That an anonymous allegation was made to the Department in October 2019 alleging that the applicant has been working as an Uber driver for over 80 hours a week, in breach of the conditions of his Student visa;

   b.That the applicant has been enrolled at university, but has not attended any classes and keeps changing his degree with ‘falsified information’ to extend his stay; and

   c.The allegation alleges that these breaches occurred over the two years prior to the making of the anonymous report.

6. The Tribunal noted in its letter that it had not yet made up its mind about the information or the weight which could be given to it, but informed the applicant that it may be relevant to the grounds for cancellation of his visa under s. 116(1)(fa)(i) of the Migration Act.

7. The Tribunal advised that the information may also be relevant to the exercise of the discretion to cancel the visa, in particular the following considerations:

   a.The purpose of the visa holder’s travel to and stay in Australia;

   b.The extent of compliance with visa conditions; and

   c.The circumstances in which the ground for cancellation arose.

8. The Tribunal advised that if it relies on this information in making its decision, it may be the reason, or part of the reason, for the Tribunal affirming the decision of the Department. The Tribunal invited the applicant to give comments on or respond to the information in writing by 2 November 2020.

9. On 28 October 2020 the applicant’s agent responded by email, attaching a submission dated 25 October 2020. In the body of the email, the applicant’s agent informed the Tribunal that the applicant will be providing documentary evidence from his education provider and evidence of financial support from his family in Pakistan by the following week. The submission states that the applicant had informed his agent of the following:

   a.In regards to his hours of work as an Uber driver, the applicant denies working as much as 80 hours per week. He tried to comply with the 40 hours fortnightly requirement during college semesters, however his work duties as an Uber driver ‘are such that he cannot adhere to strict time deadlines.’ He states that once he starts a ride with a client, he has to complete the journey no matter how much time it takes;

   b.He commenced his work as an Uber driver in February 2017 and continues with it to date. His hours have varied over the years. He does not have documentation to show he worked only a certain number of hours during a particular week, however he says that he never worked 80 hours per week as claimed. He states that it would not be humanly possible for him to work 8o hours per week as it would require him to work 16 hours per day. He states that in certain months he did not work at all, for example from September to November 2018 and August to September 2019. He worked longer hours during term breaks and the long holiday commencing in December;

   c.His Student visa is sponsored by his grandmother, through her business White Palace Marriage Hall, as well as rental income she receives from several real estate properties and 3 acres of agricultural land. The applicant stated she became ill in approximately July 2017 and her condition worsened by 2018. He felt it was not right to take money from her for his studies as the money was needed for her medica expenses;

   d.The applicant claims that his earnings as an Uber driver were within the tax system and were legal and transparent;

   e.At present the applicant is supported by his father. His father has sold one of his properties in Pakistan to fund his studies in Australia, and that evidence of the sale will be provided;

   f.Regarding the anonymous allegations about his course enrolments and attendance, the applicant stated that he wanted to find the right course that would give him the right pathway to be gainfully employed. He was not satisfied with his previous courses because of the sub-standard quality of course delivery and content or because he felt it was not the right course for him. He never intended to defraud the system by repeatedly changing courses to stay in Australia. He stated that he would not achieve any benefit from such a course of action because his family is spending money for him to stay in Australia, and he would be jeopardising his prospects to undertake further studies in Australia;

   g.If he was keen to earn money on the pretext of holding a Student visa, he could have comfortably stayed in Pakistan, as he is well provided for by his family. His family has spent significant amounts of money on him, including selling family assets;

   h.He is a genuine temporary entrant whose sole purpose is to complete his studies in a productive way, so he can be gainfully employed in a suitable job in Pakistan. He is at present enrolled in the Certificate III in Light Vehicle Mechanical Technology and has completed 31 units of this course. The Certificate IV in Light Vehicle Mechanical technology will commence in March 2021;

   i.In relation to the discretion to cancel the visa, the applicant states tat his purpose in travelling to Australia was to complete a course which would assist he to be gainfully employed in Pakistan. He has now identified this pathway and is progressing towards his goal. The submission states the applicant is a law-abiding non-citizen who is prepared to meet the conditions attached to his study. It states that irreparable damage will be done to him is he is not allowed to continue with his studies. He will suffer financially in relation to his employment ambitions. Substantial money has been invested in his studies. He will suffer emotional and psychological pain. He will endure continuing setbacks to furthering his career goals. He will face social humiliation and disappoint his family. The submission states that the applicant fears he will undergo the pain of depression and anxiety all over again. The applicant requests that any discretion to cancel his visa be exercised considering his compelling circumstances. The submission states the applicant has has shown ‘progressive success’ in his current studies and is abiding by the conditions attached to his current visa. The applicant requests that he be given the opportunity to complete his studies so his time spent in Australia, money and hopes are not wasted.

10. On 5 November 2020 the applicant’s agent sent the Tribunal a further email, in which he stated that the applicant had informed him that the documents he was expecting from his education provider and his evidence of financial support, would take a further two to three days to be provided.

11. On 9 November 2020 the applicant’s agent sent the Tribunal a further email, attaching copies of two bank statements of a bank account held by the applicant’s father for the period 1 October 2020 to 4 November 2020, as well as a copy of an agreement for the sale of land made on 2 November 2020. Although this financial information has been provided after 2 November 2020, the Tribunal has nevertheless taken it into account in making its decision. The Tribunal notes that the applicant has not provided any further evidence from his education provider. The Tribunal notes that as at the date of this decision, close to 6 weeks have passed since 2 November 2020. The Tribunal considers the applicant has had more than sufficient time to provide any such information and has not provided it. The Tribunal has therefore proceeded to make a decision on the basis of the information and evidence currently before it.

    Findings in relation to non-disclosure certificate and anonymous report

12. Section 375A of the Act provides that where the Minister has certified in writing that disclosure of a document or information would be contrary to the public interest, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than the member of the Tribunal constituted to the review.

13. The Tribunal has considered the validity of the certificate, which was issued by the Department under s.375A on 8 October 2020. The Tribunal is satisfied that the Department has established a credible reason why access to the information at folio 1 of the Department file would be contrary to the public interest, as the particulars of the information includes information which may contain personal identifiers and personal information. The Tribunal finds that the certificate issued under s.375A of the Act is valid.

14. The Tribunal has determined that it was appropriate to nonetheless provide the applicant with the essence of the information covered by this certificate, which has been set out above.

15. Having considered the information contained at folio 1 and the submission provided on behalf of the applicant on 28 October 2020 and the further information provided by email on 9 November 2020, the Tribunal does not rely on the information contained at folio 1 and gives it no weight in making its decision as to whether the ground for cancellation is made out or whether the visa should be cancelled. The Tribunal makes this decision on the following basis:

    a.Regarding the allegations that the applicant has been enrolled at university, but has not been attending classes and has been changing his degree with ‘falsified information’, the Tribunal considers that this allegation goes to the heart of the first issue before the Tribunal, namely whether the ground for cancellation is made out. The Tribunal considers that the information contained at folio 1 is of a very general nature and contains no specifics. The Tribunal considers that the information about the applicant not attending classes and changing his degree is contained within the delegate’s decision in specific detail, a copy of which was provided by the applicant. As to the allegation that the applicant provided ‘falsified information’, no specifics have been provided of the nature of such information, and the Tribunal therefore gives no weight to this allegation;

    b.Regarding the allegation that the applicant breached the work condition of his Student visa by working over 80 hours a week as an Uber driver, the Tribunal notes that this allegation was made anonymously. The Tribunal has not had the opportunity to question the person who made this allegation as to the details of the allegation or their reasons for making the allegation. The applicant has denied the allegation in his submission made in response. The allegation contains insufficient information which would allow the Tribunal to test the veracity of the allegation. The Tribunal therefore gives no weight to this information and does not rely on it in assessing whether the visa should be cancelled.

16. Accordingly, the Tribunal does not rely on the information in folio 1 and does not give it any weight in deciding whether the grounds for cancellation have been made out or in the exercise of the discretion to cancel the visa.

    Analysis and findings regarding the grounds for cancellation of the visa

17. The Tribunal notes that while the written submission from the applicant’s representative claims that the applicant found it hard to articulate his case properly over the telephone, the written submissions largely restate the evidence which the applicant provided at the hearing. While some additional explanation is provided in the written submission about some aspects of the applicant’s circumstances, most of the information was provided in the applicant’s oral evidence, as set out above. Therefore, while the written submission may explain things in a more eloquent fashion, I do not consider that the applicant was unable to articulate his case effectively through the process of the telephone hearing. Given the repetition of the claims which were made in the written statement with those that were given in his oral evidence, I find that the applicant was able to effectively articulate the key evidence in support of his claims. However, given the concerns which have been raised, and the similarity of the claims made in the submissions with the applicant’s oral evidence, I accept the submissions into evidence and have regard to them as further explanations offered by the applicant.

18. From his enrolment history, the Tribunal notes that the applicant did not complete the course of study which was the subject of his visa, despite three CoEs being issued for the Bachelor of Community Services, two of which were cancelled because of non-payment of fees and one because the applicant notified his education provider that he was ceasing his studies. The applicant was therefore not enrolled in a Bachelor-level course from 2 May 2019.

19. The applicant was however enrolled in the Certificate III in Light Vehicle Mechanical Technology from 26 April 2019 (and in addition was approved to study the Certificate IV in Automotive Mechanical Diagnosis) and therefore not in breach of the enrolment condition of his visa.

20. The Tribunal notes that subsequent to this the applicant obtained his enrolment in the Graduate Diploma of Management (Learning), with a start date of 16 December 2019, which technically provided him with an enrolment at an AQF level higher than that of a Bachelor degree. The Tribunal notes that the applicant has provided a copy of his first CoE for this course, which was created on 31 August 2019, and therefore the Tribunal accepts the applicant’s claim that he obtained this CoE prior to the Department issuing him with the NOICC (which was issued on 8 November 2019).

1. The Tribunal has considered the explanations the applicant has provided regarding his enrolment history, as well as the additional explanations provided in the written submission given after the hearing. While the Tribunal considers that the applicant has offered a range of explanations, some of which may be considered to be reasonable explanations when considered in isolation, however when the totality of his enrolment history is considered, I find that it is not consistent with the conduct of a genuine student, and that his enrolments were to maintain literal compliance with the enrolment condition of his visa.

2. The Tribunal notes that in the four years and four months that the applicant had resided in Australia holding a Student visa, he had completed only a Diploma, a Certificate III and a Preparatory English course, despite both of his Student visas being granted for the purpose of completing study at the Bachelor level. I note that the applicant’s first course of study, in the Bachelor of Business, was cancelled on three occasions, two of which were cancelled due to non-commencement of study. The applicant has offered explanations for these cancellations, however the Tribunal has difficulty with these explanations. The applicant claims that his first enrolment was cancelled because he arrived in Australia two weeks after his course started. The Tribunal considers it was the applicant’s responsibility to ensure that he was in Australia in time to start his course and attend classes, although it accepts that he subsequently obtained another two enrolments in this course.

3. The Tribunal does not accept the applicant’s claim that he attended his examinations for the Bachelor of Business in February 2016 and was incorrectly recorded by his education provider as absent. The Tribunal did not find the applicant’s evidence of the events which transpired to be convincing. He gave no evidence of any communication with his education provider about such an outcome, which one might expect from a genuine student who was attending classes and completing assignments. Rather, he claims he took advice from an education provider who told him to enrol in another course with a different provider. I note that in his statement in response to the NOICC, the applicant gave a different explanation to the Department for the third cancellation of his CoE for this course, which was as follows:

   Being stressed and missing my family was getting on me. I asked the college to defer my course so that I could visit my family. Unfortunately, they didn’t listen to me and this resulted in my CoE being cancelled.

4. The applicant has provided no evidence to support his claim that he commenced the Bachelor of Business. The delegate’s decision indicates, from information contained in the applicant’s PRISMS record, that the applicant’s most recent enrolment in the Bachelor of Business was cancelled on 7 March 2016 for non-commencement of studies. In the absence of any compelling evidence to the contrary, and given the inconsistent claims the applicant has made regarding the reasons for cancellation of this CoE, the Tribunal finds that the applicant did not commence the Bachelor of Business as claimed. The Tribunal therefore finds, based on the available evidence, that the applicant did not commence a course of study in Australia until 11 April 2016, despite having arrived in Australia on 29 July 2015.

5. The Tribunal does not find the reasons the applicant gave for not pursuing the Advanced Diploma of Accounting to be compelling. At the hearing he stated that he submitted his assignments for this course, but due to the college not having an online system he had to submit his assignments by email. He claims that the college’s management told him that his assignments had not been submitted, he could not understand them and he felt he was wasting his time and money. The Tribunal considers that if the applicant had completed and submitted his assignments by email, he should have had copies of such assignments saved in his email system, and these could easily have been forwarded to the college’s management. The Tribunal also notes that in his response to the NOICC, the applicant provided a different explanation, stating that he found the atmosphere in the college was not motivating and he left the college ‘due to not being interested in it.’

6. The Tribunal does not find the applicant’s reasons for his lack of progress with the Bachelor of Community Services to be compelling. The Tribunal notes that the applicant’s enrolment in this course was cancelled on two occasions for non-payment of studies, and cancelled a third time because the applicant notified his education provider that he was ceasing his studies. The Tribunal finds the applicant’s academic results in this course (enrolled in three units, one of which he failed, and two of which he obtained low passes) does not demonstrate sufficient progress with the course. On his own evidence, the applicant has not demonstrated that he had a particular interest in this course and at one point indicated that his education agent suggested it to him.

7. The Tribunal did not find the evidence the applicant gave at the hearing regarding the relevance of the Certificate III in Security Operations to his future plans in his home country to be convincing. The applicant gave a confused explanation as to the relevance of this course to careers in Pakistan, and did not provide any convincing evidence of how such a qualification would be relevant to his proposed plans to start his own garage. Rather, on the evidence before the Tribunal, I consider this qualification was obtained for the purpose of enhancing the applicant’s short-term career prospects in Australia. I consider that his focus on enrolling on this Security course, rather than the Bachelor course for which the visa was granted, to be relevant to assessing whether the applicant has conducted himself as a genuine student.

8. The applicant’s Student visa (subclass 500) was granted on 17 July 2018 to allow the applicant to undertake study which would provide him with a qualification at the Bachelor level. He was previously granted a Student visa (subclass 573) for the same purpose. Based on the information provided above, I am satisfied that the applicant has not maintained the educational pathway for which the visa was granted. The applicant was not enrolled in such a course from 2 May 2019. Although he has a CoE for the Graduate Diploma of Management (Learning), at the time of the delegate’s decision, he was not due to commence this course until 14 June 2021, approximately six weeks after his Student visa was due to expire.

9. The Tribunal finds that the applicant has not progressed study at the Bachelor degree level since the grant of his visa. The Tribunal finds that the applicant has instead focused on undertaking short vocational courses which will strengthen his career opportunities in Australia. The applicant is currently enrolled in Certificate-level courses in automotive and mechanical field. The Tribunal also finds that the applicant did not make progress towards study at the Bachelor degree level as part of his previous Student visa. The Tribunal also notes the applicant gave evidence that if he wants to obtain a degree, he can obtain one in Pakistan, and that his preference is to focus on courses which are of interest to him and out of which he believes he can build a professional career.

10. The applicant has now been in Australia for over five years, purportedly as a genuine student engaged in full-time study. While he has demonstrated some behaviour consistent with the requirements of his previous Student visa, in particular the completion of the Diploma of Leadership and Management in April 2017 and a six-week English course in May 2018, up until the date his visa was cancelled, he demonstrated little commitment or progress towards the goal of obtaining a Bachelor-level qualification or higher.

11. Overall, the applicant has demonstrated little academic achievement or progress in the approximately four years and four months until the cancellation of his Student visa. While he has completed a 12-month Diploma of Management, a six-week course in English and a six-week Certificate III in Security Operations, these achievements represent approximately 15 months of study out of four years and four months. The Tribunal finds that the applicant’s academic record up until the date his visa was cancelled is not consistent with that of a genuine student. Rather, he has had numerous enrolments in different courses, and changed his study pathway to courses within different fields, including Business, Leadership and Management, Accounting, Community Services, Security Operations, and now the Automotive and Mechanical field. In reaching this finding, the Tribunal has had regard to all of the information before it (other than the anonymous report, which I have addressed above), including the completed ‘Request for Student Visa Information’, written submissions and other information provided by the applicant in support of his claim that he is a genuine student.

12. The Tribunal has also considered whether the applicant has restored his status as a ‘genuine student’ through his enrolments in the Certificate III in Light Vehicle Mechanical Technology, the Certificate IV in Automotive Mechanical Diagnosis and the Graduate Diploma of Management (Learning), and the evidence he has provided regarding his progress in the Certificate III. The Tribunal does not consider that the applicant’s enrolments in these courses demonstrate that he is a genuine student. As noted by the delegate, the applicant has changed his original study plan to undertake studies at the vocational level, below the Bachelor level for which his visa had been granted, and he will not commence the Graduate Diploma until 14 June 2021, six weeks after his Student visa was due to cease.

13. When asked why he has now enrolled in the Graduate Diploma of Management (Learning), the applicant stated that his agent suggested that he study it. Similarly, when the Tribunal raised the concern that the applicant was not enrolled in a Bachelor level course, he stated that he spoke to his agent about ensuring he met the requirements, and his agent arranged enrolment in the Graduate Diploma, but did so for an earlier start date than he intended. The applicant did not provide convincing reasons for commencing this course of study, other than briefly claiming it would help him set up a garage. The Tribunal finds the applicant has demonstrated little interest in this course, as opposed to his interest in the Automotive and Mechanical courses. Based on the evidence before it, the Tribunal finds that the applicant has obtained CoEs for the Diploma of Management (Learning) as a means of maintaining enrolment at the AQF 7 (Bachelor degree) or higher, and therefore as a means of maintaining literal compliance with his visa conditions, rather than because of a genuine interest in this course. This supports the Tribunal’s finding that he is not conducting himself as a genuine student.

    Conclusion on whether grounds for cancellation exist

14. The Tribunal finds that the applicant is likely not to be a genuine student.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

16. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

17. The applicant told the Tribunal that his reason for travelling to Australia was to get an education, however he gave little evidence of a clear plan or focus on his studies. He told the Tribunal that he hadn’t made up his mind before coming to Australia, however one of his ‘family cousins’ lives in Australia, and his father spoke to him because, as claimed by the applicant, the education is not good in Pakistan. He stated that he came to Australia when he was 22 and he was not focused on anything. He stated that he has no other reasons for staying in Australia, that he loves his mother and does not want to be so far from his parents. He stated that his parents have big hopes for him.

18. When questioned about his plans if the visa is not cancelled, the applicant stated that he was studying ‘Automotive’ at the time (he was enrolled in the Certificate III in Light Vehicle Mechanical Technology), and that he will get some experience and then go back to Pakistan to start his own business.

19. When questioned about not enrolling again in a Bachelor degree course, he stated that if he wants to obtain a degree he can get one from Pakistan, and that he is more interested in studies in the Automotive field and believes he can make a professional career out of it.

20. The applicant stated that he was working as a casual Uber driver and stated that he only does this work when he gets time, that he does not do it constantly or consider it a permanent job.

21. The Tribunal questioned the applicant about the Certificate III in Security Operations which he completed in May 2019 and whether he has worked in security. The applicant stated that he had not. He stated that it is hard to start a business in Pakistan and that this will help. When questioned how this was relevant to his proposed plans, the applicant stated that some friends of his did this course and more certificates and qualifications are good for him. He stated however that he is not a fan of security jobs and he has in mind working for the family business and starting his own business.

22. In this case, the ground for cancellation has been made out on the basis that the applicant has been found likely not to be a genuine student. The established ground for cancellation directly and fundamentally undermines the purpose of the applicant’s stay in Australia. This is a significant factor that weighs in favour of cancelling the applicant’s visa.

23. The Tribunal has nevertheless also considered the applicant’s evidence specifically in relation to his purpose for travelling to and staying in Australia. The Tribunal does not however find the applicant has established a compelling need to travel to or stay in Australia.

24. While the Tribunal accepts that the applicant has a genuine interest in the Automotive and Mechanical Fields and wishes to remain in Australia to complete the Certificate III and IV courses, the applicant has not advanced any compelling reasons why he would need to remain in Australia to complete such qualifications, similar qualifications to which could also be obtained in Pakistan.

25. In addition, the Tribunal finds that the applicant has not made meaningful progress towards achieving a qualification at the level for which his Student visa was granted. While he has a CoE for the Graduate Diploma of Management (Learning), his enrolment in this course will not commence until 14 June 2021, approximately six weeks after his Student visa was due to cease. As noted above, the Tribunal finds that the applicant has not provided a compelling reasons for his enrolment in the Graduate Diploma of Management (Learning). Although he stated it will be relevant to his plan to opening a garage, he did not articulate how it was relevant. The Tribunal finds the applicant has enrolled in this course as a means of ensuring that he is enrolled in a course at the AQF Level 7 or higher. The Tribunal finds that he has not enrolled in this course because of a genuine interest in undertaking the course or because of the value of the course to his future. On his own evidence, the course was suggested to the applicant by his education agent. This indicates to the Tribunal that the applicant has enrolled in courses to meet the technical requirements of the Student visa, rather than because of a genuine interest in some of these courses of study. Overall, taking each of these findings into account, the Tribunal gives this consideration weight in favour of cancelling the visa.

    The extent of compliance with visa conditions

26. The applicant’s conduct has led to the Tribunal finding that he is likely not to be a genuine student. As noted, he has failed to maintain enrolment in a Bachelor-level course from 2 May 2019. Although he has obtained CoEs for the Graduate Diploma of Management (Learning), at the time of the visa cancellation he was not due to commence this course until 14 June 2021, approximately six weeks after his Student visa was due to expire. The Tribunal notes however that the applicant attempted to meet the AQF level requirements by enrolling in the Graduate Diploma of Management (Learning), and takes this into consideration in deciding the weight to be given to this consideration. The applicant has technically maintained the enrolment requirement by enrolling in a range of courses, including three enrolments in the Bachelor of Community Services, a Certificate III in Security Operations, the Certificate III in Light Vehicle Mechanical Technology, the Certificate IV in Automotive Mechanical Diagnostics and the Graduate Diploma of Management (Learning), and the Tribunal accepts that he obtained the Certificate III in Security Operations and has been studying the Certificate III in Light Vehicle Mechanical Technology.

27. However, the Tribunal has concerns that he has not maintained course progress for the level of course for which the Student visa was granted, and has instead enrolled in short vocational courses. The Tribunal finds he has enrolled in these vocational courses to strengthen his employment opportunities in Australia, rather than for the reasons stated. The Tribunal takes into consideration the applicant maintaining the enrolment requirement, however has concerns that the applicant has obtained some of the above enrolments for the purpose of maintaining his Student visa.

28. As noted, the Tribunal has given no weight to the anonymous allegation that the applicant has breached the work condition of his visa. The Tribunal finds there is no compelling evidence that the applicant has breached his work condition and gives this some weight in the applicant’s favour.

29. Overall, the Tribunal finds that the applicant is significantly in breach of his student visa conditions and as such the Tribunal gives this consideration weight in favour of cancelling his visa.

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

30. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated that it will affect his career and his happiness. He stated that his parents wish to see him with a good career and business. He claimed that if he returns to his home country now he won’t be able to do anything, that he has spent four to five years in Australia and wants to show something for his time. He stated that he does not want to lose his career because of a few unlucky things and some things that he got wrong. He stated that he would love to do his automotive work an have a career. He stated that he cannot do a job without a qualification.

31. In terms of hardship to his parents, he stated that his parents would be disappointed of her returns to his home country without a degree or qualifications, they will have lost their money and societal expectations will not be met.

32. The Tribunal questioned the applicant whether he could obtain his proposed qualifications in Pakistan. He responded that he tried to continue his studies in Pakistan, but there are many problems. He stated that there are a lot of bad students there and that you get a good status if you obtain overseas qualifications. He told the Tribunal that after completing high school he obtained a Certificate in Management in Pakistan. The Tribunal also notes that later in the hearing the applicant stated that his interest is in th Automotive and Mechanical fields and that if he wishes to obtain a degree, he can obtain one in Pakistan.

1. The Tribunal accepts that there would be some hardship on the applicant if the visa were cancelled, including it would mean that he may not be able to complete his current course of study in Australia or obtain the Automotive and Mechanical qualifications which he wishes to obtain in Australia. The Tribunal also accepts that there would be hardship to the applicant’s parents, both in terms of the financial expense provided to support the applicant’s studies in Australia, as well as disappointment and the difficulty of addressing societal expectations. The Tribunal also accepts that hardship may be caused to the applicant in having to explain his circumstances to his parents. Later in the hearing the applicant stated that he had not yet told his parents about the visa cancellation, and the Tribunal accepts that this may result in further hardship for the applicant.

2. While the Tribunal accepts this evidence of hardship, the applicant has provided no compelling reasons why he cannot study similar courses to his Automotive and Mechanical courses in Pakistan. I consider that the applicant could obtain such qualifications in his home country, however I also take into account the hardship as a result of not being able to complete the Certificate III in Light Vehicle Mechanical Technology, which he has commenced. Having regard to the degree of hardship which I accept may be caused, I give this consideration some weight against cancelling the visa.

   Circumstances in which ground of cancellation arose

3. The applicant gave evidence that his first enrolment in the Bachelor of Business was cancelled because he arrived in Australia two weeks after the course commenced. He stated that he obtained a ‘deferral’ to commence the course in the following semester. He gave evidence that he subsequently transferred to another course after the college incorrectly claimed that he had not been present for his exams in February 2016. However, the Tribunal notes the applicant’s most recent enrolment in the Bachelor of Business was cancelled for non-commencement of studies on 7 March 2016, and the Tribunal gives no weight to the applicant’s claim regarding his reasons for the cancellation of his CoEs for this course. The applicant has provided no evidence to support his claim that he commenced the Bachelor of Business, and in the absence of such information, the Tribunal prefers to accept the applicant’s PRISMS enrolment record, which was set out in the delegate’s reasons for decision.

4. The Tribunal accepts that the applicant enrolled in and completed a Diploma of Leadership and Management from 11 April 2016 to 9 April 2017.

5. The applicant was next enrolled in an Advanced Diploma of Accounting. He stated that he was told to do this course by his agent, however his mother was sick, so he could not focus on his studies at the time. He stated that his mind was not prepared. He stated that she was ‘a little bit sick’ in 2017, but after a year she became more ill. He also claimed that the college did not have an online system and although he submitted assignments, he was told by the college’s management that he had not. In his written response to the NOICC he told the Department that the atmosphere in the college was not motivating and he was not interested in the course.

6. The applicant then enrolled in the Bachelor of Community Services three times. His first two enrolments in this course were cancelled for non-payment of fees and his third CoE was cancelled because the applicant notified the college that he was ceasing his studies. The applicant stated that he found he was not interested in that course, so was not willing to finish it. He stated this is why he searched for other courses, including searching for Automotive courses. He stated that his poor results in this course were also due to his mother getting sick.

7. He stated that he is interested in the Automotive and Mechanical courses that he is currently enrolled in and wishes to make a career out of these in his home country. When questioned why he had not enrolled in another Bachelor-level course, the applicant stated that he spoke to his education agent about ensuring he met the requirements, and his agent arranged for his enrolment in the Graduate Diploma

8. The applicant conceded that he had enrolled in many different courses and that he had made some wrong decisions, however is interested in his current courses of study.

9. The Tribunal also notes the applicant’s completion of a short English course in May 2018 and the Certificate III in Security Operations in May 2019 (and his completion of a Diploma of Leadership and Management while he held his previous visa).

10. The Tribunal has had regard to the applicant’s specific evidence regarding the circumstances in which the ground for cancellation arose, as well as his evidence as a whole, including the documentary evidence provided. The Tribunal has considered the medical evidence provided by the applicant, but considers it provides little support for the applicant’s claims regarding his mother’s ill health and the effect this had on his ability to study. The Tribunal notes the applicant three handwritten notes from medical professionals in Pakistan. Two of these, dated 5 August 2016 and 8 September 2017 are headed ‘Mr Shahbaz’, and therefore appear to be in relation to the applicant, not his mother. Neither note is legible or sets out any condition which the applicant may have had, the duration of such a condition or the affect this may have had on his ability to study. The third medical note relates to the applicant’s father, and again consists of illegible hand-written notes which do not describe any symptoms or provide a medical diagnosis or indicate the duration of any condition. No medical evidence has been provided with respect to the applicant’s claims about his mother’s health, and therefore the Tribunal gives little weight to these claims.

11. Overall the Tribunal finds that the circumstances in which the ground for cancellation arose were not beyond the applicant’s control, but were the result of the applicant’s failure over several years to make significant progress with his studies and his decisions to regularly change his study pathway by enrolling in a range of different courses. The applicant has put forward a range of reasons for not continuing with various courses, which the Tribunal does not find compelling. The Tribunal notes that some of the explanations provided are not consistent with those previously provided to the Department. The Tribunal finds that while the applicant has maintained literal compliance with the enrolment requirements by enrolling in a range of courses, sometimes enrolling in the same course on multiple occasions, he has not made progress towards any Bachelor-level studies, which was the purpose for which his Student visa was granted. Although he has enrolled in the Graduate Diploma of Management (Learning), he has deferred commencement of this course until 14 June 2021, approximately six weeks after his Student visa was due to end. The Tribunal has also finds that the applicant does not have a genuine interest in this course and has obtained the CoE in order to be enrolled in a course at the same or higher AQF level as at the course for which the visa was granted. He has also enrolled in vocational level courses, such as the Certificate III in Security Operations, which are not consistent with his original study plan or his stated future plans in his home country, and which the Tribunal finds were to strengthen his employment opportunities in Australia. Accordingly, I give this consideration significant weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the department

12. There is no information to suggest that the applicant has been uncooperative with the Department. The Tribunal notes the applicant responded to the NOICC issued by the Department with a detailed statement, and therefore appears to have engaged with the Department. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

100.   The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

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

101.   The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion.

102.   The Tribunal asked the applicant whether there were any particular considerations it should have regard to, given these mandatory legal consequences, to which he stated that he requested that he be given the opportunity to fulfil his dreams and to make his parents proud.

103.   The Tribunal notes that the consequences would mean the applicant would be prevented from completing his current studies which he claims he wishes to pursue. The Tribunal has considered the effect of the legal consequences on this stated plans to complete his Mechanical and Automotive courses. Accordingly, I give this consideration some weight against cancellation of the visa.

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

104.   There are no such circumstances in this case. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

Any other relevant matters

105.   The applicant told the Tribunal that there were no other relevant matters. The Tribunal is not aware of any other relevant matters or considerations to be taken into account in relation to the cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

106.   Conclusion on circumstances as a whole

107.   The Tribunal considers the applicant’s breach on the grounds that he is likely to not be a genuine student is a significant matter. Although the Tribunal has accepted that a decision to cancel the visa will cause hardship to the applicant, and also gives some weight to there being no issues surrounding the applicant’s behaviour towards the Department, these considerations are insufficient compared to the other considerations which overall weigh in favour of cancelling the visa.

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

DECISION

109.   The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Frank Russo
Member

ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

…

(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

(a)because of the conduct of the holder; or

(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.