Kunwar (Migration)

[2019] AATA 1352

Kunwar (Migration) [2019] AATA 1352 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Shreejata Kunwar
Mr Shivaram Acharya

CASE NUMBER:  1714825

HOME AFFAIRS REFERENCE(S):           BCC2017/1612175

MEMBER:Brendan Darcy

DATE:2 May 2019

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 02 May 2019 at 3:51pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-enrolment – not a genuine student – extenuating circumstances – health issues – family situation – failure to avoid or mitigate non-compliance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 6 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s Subclass 573 Higher Education Sector 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 breached a condition imposed on his visa as the grounds for cancellation and that the grounds for the visa’s cancellation outweighed the grounds for not cancelling. 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. For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant who has a reviewable decision.

4. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.

5. For the purposes of this review, the first named applicant, Mrs Shreejata Kunwar, be referred to as the first applicant or the applicant; the second named, Mr Shivaram Acharya, as the second applicant or the applicant’s spouse.

6. The applicants, citizens of Nepal, appeared before the Tribunal on 5 April 2019 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

8. 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

1. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

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

   ·            be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

3. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

4. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 9 July 2014 and that she arrived in Australia on 14 July 2014. It further states that Provider Registration and International Students Management System (PRISMS) records indicate the applicant was enrolled in a registered course of study including a Certificate IV in Accounting, a Diploma of Accounting and a Bachelor of Commerce.   

5. The decision record stated that PRISMS records also states the applicant ceased study on 26 June 2015 and did not commence another course until 26 April 2016 and then only undertook about two (2) months further study before ceasing again in 17 October 2016.

6. The enrolment between April 2016 and October 2016 had been at Stott’s College to undertake a Bachelor of Business at Stott’s College.

7. The applicant was then not enrolled in any further coursework again until 9 June 2017 in a Certificate III and IV in Cookery, as well as a Diploma of Hospitality Management at PAX Institute. There is no evidence the applicant enrolled in a Bachelor’s or Master’s degree as required by a visa holder of a Subclass 573 student visa for higher education purposes.

8. The departmental file indicates that that the applicant was contacted by a departmental official on 7 June 2017 to verify the applicant’s contact details as the Department needed to issue the applicant an important formal written notification.

9. The Department then validly issued the Notice of Intention to Consider Cancellation (NOICC) on 16 June 2017, inviting the applicant to provide written reasons not cancel the student visa within a five-day timeframe.

10. The applicant responded to the NOICC on 20 June 2017. The applicant did not dispute that she had not complied with condition 8202(2):  (“…I clearly agree I have made mistake” (sic)); however the applicant provided reasons not to cancel this student visa under review.

11. A delegate on the Minister’s behalf proceeded to cancel the student visa on 6 July 2017 2017 and the applicant validly applied to have that cancellation decision reviewed by the Tribunal on 11 July 2017 with the decision record attached.

12. The applicants provided written and oral evidence to the Tribunal, both leading up to and during the scheduled hearing as to the reasons her visa should not be cancelled. The applicant also provided additional documentary and written reasons. However the first applicant did not dispute that she had breached condition 8202 in this evidence.

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course study, namely a Bachelor’s or Master’s degree for higher education purposes between 26 June 2015 and 26 April 2016 and between 17 October 2016 and 11 July 2016 which is cumulatively a period that cumulatively amounts to twenty (20) months. 

14. On the evidence before the Tribunal, the applicant was not enrolled in a registered course commensurate with a Subclass 573 visa.  Accordingly, the applicant has not complied with condition 8202(2).

15. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) exists.

    CONSIDERATION OF THE DISCRETION TO CANCEL THE VISA

16. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’

    Some credibility concerns addressed

17. It has been part of the applicant’s claims for the visa not be cancelled that she experienced psychological, along with physical, illnesses. Prior to the scheduled hearing on 5 April 2018, no such evidence from a medical professional was submitted. During the scheduled hearing, the applicant undertook to provide evidence that she had engaged a counsellor during her period of non-compliance, along with any other documents to support her case not to have the visa cancelled. On 30 April 2019, the applicant’s representative submitted additional documents as part of that post hearing opportunity. 

18. Included in that submission, were three letters from the same psychologist, Mrs Wal Tubbesing, variously dated 19 July 2017, 6 April 2019 and 7 April 2019. These were examined by the Tribunal and raised the following concerns:  

    ·Dated 6 April 2019, the letter was on a health clinic’s letterhead and outlined that the applicant was seeing the psychologist for her anxiety/depression. It stated she had been struggling with her health since 2017 due to family issues back home that started in 2015. It also stated the applicant needs to have support to develop stronger coping skills and learn to reduce anxiety but that was only possible if she has some certainty with her visa status. It was also hand signed and dated by the psychologist.

    ·The letter dated 7 April 2019 stated the applicant “has not wish to cheat the system but finish a course she likes.”, and that the applicant “Have no income due to the restrictions of not being able to work makes her mental health issues harder to deal with”.   The Tribunal noticed that the letter was not on letterhead, the type size and format was different to the letter with letterhead. It was also curious to the Tribunal that the psychologist did not raise these additional concerns in the earlier letter dated 6 April 2019.; and

    ·The earliest letter dated 19 July 2017 stated the applicant suffered from anxiety and depression due to family issues back home. Again this letter claiming to indicate the applicant had engaged a psychologist around the time of her non-compliance with condition 8202 is not on letterhead appeared inconsistent. These apparent inconsistencies and the fact the applicant had not earlier submitted this letter given the volume of medical information she had submitted to date

19. On 30 April 2017, the Tribunal undertook to contact the psychologist by phoning first her clinic (which confirmed the psychologist was a consultant at that clinic) and then her mobile phone. The Tribunal obtained the psychologist’s email address. On the same day, the Tribunal emailed the psychologist asking her to verify the authenticity of the letters.

20. On 1 May 2019, the applicant’s psychologist responded by stating that the letters were all written by her and accounted for the differences in the letters due to working from different computers. She also clarified that the applicant had been seen by her as a patient in 2017.

21. Based on the psychologist’s emailed reply, the Tribunal accepts these letters genuinely reflected that the applicant had seen a medical professional about mental health concerns in 2017 and it places much weight on them as indicating the applicant did genuinely experience mental health symptoms within the claimed timeframe of non-compliance.

    The extent of compliance with visa conditions

22. The extent of non-compliance of condition 8202(2), in which the applicant was not enrolled in a Bachelor’s or Master’s degree for a twenty (20) month period, cumulatively considered, is found to be substantial and significant by the Tribunal.  The Tribunal gives this factor significant weight towards the visa being cancelled.

23. The delegate’s decision does not record any information about further non-compliance. Neither is the Tribunal aware of any further non-compliance. The Tribunal gives this factor some weight in favour of the applicant.

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

24. It is noted that the applicant held a student visa between July 2014 and July 2017. During that time the applicant has completed a Certificate IV in Accounting and a Diploma of Accounting. While the Tribunal places some weight on these limited academic achievements as a Subclass 573 visa holder, the applicant has spent twenty months not enrolled in any Bachelor degree and later she changed her coursework from accounting to a more broad-based bachelor degree in business and then later a vocational course in commercial cookery. She also presented a completion statement that the applicant completed a Certificate III in Commercial Cookery (after the Department email the applicant on 7 June 2017)  and that she had enrolled in further catering coursework (Certificate IV and Diploma)  in late 2018 at the Royal Gurkhas Institute of Technology. As part of the post hearing submission, the applicant also provided a letter of offer dated 17 April 2019 to undertake a Bachelor of Tourism and Hospitality at Academies Australasia Polytechnic. 

25. The applicant claimed that when she came to Australia, it was to study accounting and later she enrolled in a Bachelor’s in business. She wrote that she was very excited about studying at Stott’s college in 2018. She claimed that she was unable to afford the tuition fees for family reasons which led to the cancellation of these enrolments.

26. In the applicant’s NOICC, it appears the applicant claimed she chose to do commercial cookery, after discussing her career option with her husband and her family. It states it was suggested for her by her family. She also stated that since childhood her family owned a restaurant and that the opportunities in Nepal as a qualified cook would be vital as the hospitality sector grows in Nepal and that she wants to become a professional chef. The applicant further wrote that at 32 years of age her vocational epiphany occurred later in her life than others.

27. At the hearing, the Tribunal enquired into the reasons she changed coursework. The applicant outlined that she wanted to undertake vocational coursework in cooking immediately since she arrived in Australia as she wanted to open a fast food restaurant in Nepal as other students had done so. However she received poor migration advice from an agent. Nevertheless she also insisted in wanting to complete a Bachelor degree.

28. This oral testimony whereby the applicant wanted to undertake commercial cookery soon after her arrival does not correlate with the applicant’s written reasons in her NOICC response in which she wrote her decision to become a professional cook came both after her long periods of non-enrolment and in life following discussion from her family and husband. The Tribunal finds these discrepancies are unable to be reconciled and have invited the Tribunal to consider that the applicant did not travel to Australia to complete a Bachelor degree or any coursework at all.

29. In the context of the applicant’s significant non-compliance with condition 8202 and this specific adverse credibility finding, that the Tribunal places no further weight in the applicant applicant’s favour based on her having enrolled in commercial cookery after the date the applicant was contacted by the Department to verify the applicant’s contact details (effectively alerting her to a possible cancellation decision based on non-compliance with condition 8202); that she completed any further coursework in catering or hospitality or to have undertaken any further late enrolments after the cancellation of the visa as indicated by submitted CoEs.

30. The Tribunal does not accept the applicant has a genuine vocation or interest in business, accounting or cooking; or that her dream is to complete a Bachelor degree. The applicant provided inconsistent and unconvincing reasons solely for migration purposes and not because she travelled to Australia for full time studies of any kind. Furthermore it does not accept the applicant genuinely wishes to remain in Australia as a genuine higher educational student for the purpose for which this visa under review was granted.  Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives this no weight in favour of the visa not being cancelled or being a genuine student capable of upholding conditions imposed on any further student visa granted to her.  

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

31. The applicant explained that the situation back in Nepal will be very hard given her father in law was in prison and her husband had been financially supporting his family since his arrest in Nepal. She claimed that her father in law had been accused of scamming as many as 40 investors and was imprisoned for it, when, in fact, he had been a witness of malfeasance. She also claimed there was the possibility that the land belong to her father in law may be confiscated.  As outlined below, the Tribunal accepts the applicant’s father in law had been imprisoned for a period of time and it is plausible that his damaged reputation will caused a notable degree of difficulties for the applicants.

32. The Tribunal enquired whether the applicant was able to continue her studies in Nepal. She claimed that if she returned to Nepal her husband would not be able to financially support her due to her father’s situation. Conversely, she argued, as her husband would have work rights in Australia, the couple would be able to meet their living expenses and tuition fees. As discussed in the hearing, it was open to study abroad in another jurisdiction if she wanted a qualification from abroad. The applicant said that it might be difficult as she had studied in the United Kingdom (the UK) but the college was blacklisted and this might impact on her ability to study overseas again. With regards to her own family, she described her parents as middle class; that her father owns and operates a restaurant and that he owns some land used for commercial purposes. This indicated to the Tribunal that familial and financial support will be available to the applicant if she were to continue her studies. Furthermore the applicant was able to study in Australia after her poor educational experiences in the UK, indicating no notable barrier for a student visa necessarily existed in this regard.

33. The applicant also claimed that there were further complications in returning to Nepal if the visa remained cancelled as the marriage between her and the second applicant had been an inter-caste union not approved by their respective parents. It was claimed that she belongs to a lower caste compared to her husband. The Tribunal enquired whether these difficulties were insurmountable; to which the applicant equivocally responded that they might accept it. The Tribunal does not accept there are any significant barriers to her returning in this regard.

34. With regard to the degree of psychological harm that may be caused by this visa remaining cancelled, as stated above, it does not accept the applicant has any notable, significant or severe psychological conditions and that her past and current anxieties are treatable and negligible. Furthermore she will be returning to Nepal with the emotional sustenance of a supportive spouse.  In this specific regard, the Tribunal places only some weight on this factor in favour of the visa not being cancelled.

35. However, if this visa were to remain cancelled, the Tribunal accepts that the degree of financial, emotional and psychological hardship to be faced by the applicant is more than a negligible or small amount. When cumulatively considering all the above accepted factors, the Tribunal finds that the degree of hardship – financial, emotional, psychological - to be faced by the applicant to be notable but not considerable, significant or severe. Accordingly The Tribunal gives these hardship considerations a correspondingly notable amount of weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

36. According to the decision record, departmental records confirmed that the applicant was not meeting condition 8202 attached to his student visa as she was not enrolled in a registered Bachelor’s or Master’s course for a substantial amount of time while as a student visa holder.  

1. In her NOICC response, the applicant claimed that she was endured a number of physical and psychological reasons for her non-compliance. These medical conditions included migraine, skin allergy, depression, and ten years of lower back pain with acute episodes. She provided a statutory declaration that she  unable to attend class between September 2016 and December 2016 due to a medical illness and was unable to perform her usual occupation between January 2017 and June 2017 due to a medical illness, She provided evidence of prescription for IMIGRAN tablet  (pain killing medication); tax invoices and receipts for medical services from a range of service providers; a referral letter by a medical professional to a specialist relating to hay fever and another to an medical imaging provider for recurrent episodes of headaches.    

2. As the delegate noted, the applicant did not provide any medical document from a medical professional, verifying her period of incapacity. Several of the supporting documents relate to medical attendance and referrals after the NOIIC was validly issued and after the applicant had enrolled in a vocational course for commercial cookery. There was no evidence of any deferral (or suspicions) for the course she was due to commence on 29 August 2016, prior to the CoE being cancelled in October 2016. It is also noted there are no supporting evidence of any psychological conditions and their treatment.

3. During the hearing, the Tribunal noted that the applicant had submitted a six-month chronic pain plan dated 5 January 2016 among the additional medical documents she submitted to prior to the scheduled hearing. The documentation indicates that the applicant has chronic neck and upper back pain and recurrent stiffness of the neck as well as headaches but there is nothing to indicate the applicant’s chronic pain - that is pain experienced over an extended period of time – was so acute or deliberating that she was unable to engage her studies or seek to avoid non-compliance with condition 8202 by seeking a deferral or suspension of coursework or even depart from Australia to avoid further non-compliance. The applicant also claimed she had an ear infection and could not stand or sit travel in a car.  The applicant has given a written account and medical evidence that she asked educational provider to take into consideration a four-week period of non-attendance, which was not accepted. While the Tribunal accepts this account, it does not account the very long periods of non-compliance with condition 8202 over two distinct episodes. While the Tribunal accepts that the applicant experiences a number of the physical ailments during the time of her non-compliance, the Tribunal does not accept these alone, even when considered cumulatively; explain the applicant’s significant non-compliance, including the earlier non-compliance period between June 2015 and April 2016.

4. As discussed above, the applicant has submitted a 2017 letter that indicating the applicant saw a psychologists “for anxiety/depression” and that her anxiety/depression in 2017 was due to the pressure of trying to study and cope with family issues back home.  The Tribunal accepts that the applicant was living at this time with distress leading to a loss of concentration and anxious and depressive symptoms and that it was due, in part, to her uncertain migration status in combination with her lack of academic progress and physical health matters. However there is nothing in the psychologists’ correspondence to indicate the applicant was so psychologically or emotionally afflicted that she could not seek deferment or a suspension of studies or re-enrol or even apply for a subclass of visa more suitable to vocational education. She was not hospitalised or sectioned under mental health laws. Even when considering this evidence alongside her accepted physical symptoms, the Tribunal is not satisfied that the applicant was unable to avoid or mitigate her non-compliance with condition 8202.

5. The Tribunal has also considered the applicant’s family situation in which she claimed that her father in law was no longer able to support her in her studies and that she had to clear the student loan back home. The Tribunal accepts the court document submitted to be genuine. It follows that the applicant’s father in law was gaoled for the claimed malfeasance for at least three years between 2015 and 2018. The applicant has claimed that the situation reversed the onus of financial support from her spouse’s family in Nepal in supporting the applicant’s tuition fees to her spouse being obligated to support his family in Nepal.

6. The Tribunal accepts these financial circumstances and finds a degree in them that are extenuating and even unusual or exceptional. However the applicant had partial work rights and her spouse had full work rights which would have contributed to the applicant’s living expenses and tuition fees. Furthermore the applicant has not presented any supporting evidence that she raised these accepted financial circumstances to avoid or mitigate non-compliance with 8202. It was even open to the applicant and her spouse to depart Australia, rather that exacerbating the applicant’s non-compliance, even if their conditions in Nepal are not as great as they are in Australia.

7. When considering all of the accepted circumstances – familial, financial, psychological and physical - that have been claimed for the applicant’s non-compliance leading to the cancellation of her visa, the Tribunal accepts them to be extenuating. However, the applicant has failed to demonstrate that these extenuating circumstances, cumulatively considered, were significant or beyond her and her husband’s control, in the sense that their considerable non-compliance could not have been avoided or mitigated. Based on this overall finding, the Tribunal gives the evidence very little weight towards the visa not being cancelled.

   Past and present conduct of the visa holder towards the Department

52.    According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. There is no evidence of any adverse information in this regard before the Tribunal. Accordingly the Tribunal gives this some little weight in his favour.

If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

1. Not relevant.

   whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

54.    During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. The first applicant claimed that her dreams cannot be completed if the visa remains cancelled. As the Tribunal accepts the applicant’s plans for her studies will be adversely affected by these mandatory legal consequences if her visa remains cancelled, accordingly the Tribunal gives this some weight towards the visa not being cancelled.

Whether any international obligations would be breached as a result of the cancellation

1. In the applicants’ written NOICC response, there were no claims that the first applicant would be in breach of Australia’s nonrefoulement obligations under the 1951 Convention relating to the Status of Refugees or any other international protocol.

2. However, during the scheduled hearing, the applicant raised with the Tribunal that her father-in-law (the second applicant’s father) had been imprisoned during the schedule hearing or in his post hearing submission was advanced and that there were risks of harming arising these claimed circumstances.  It was claimed that the applicant’s father in law had been accused by the government that he had been imprison for three years ostensibly for investment fraud and that the threat of property confiscation remained over the family. It was additionally claimed that the arrest, trial, imprisonment and threatened property confiscation were politically motivated as the applicant’s father in law was a member of a higher caste than those predominately in the Maoist-led Nepali government. The applicant claimed that her and her husband will be imputed with being a party of the corruption relating to her father in law’s imprisonment. At the end of the hearing, the Tribunal requested the applicants provide some documentation or media reports to substantiate these claims.

3. As part of the applicants’ post hearing submission, they submitted a translated court document indicating that Mr Hari Prasa Acharya, the father of the second applicant, had been sentenced to imprisonment for three years from April 2015. Also submitted was a newspaper reported from 12 January 2016  indicating an Interpol; ‘red notice’ had been issued for a third party person, Mr Pawan Kumar Karki, a convicted banking fraudster, was wanted by Nepali authorities in connection with committing fraud of 3.6 Nepali rupees between 2008 and 2012. While it is presumed this corresponds with the testimony heard in the hearing that the applicant’s father in law had not been the leader of the alleged fraud. There is no submission provide further context to this media report.

4. On balance, the Tribunal accepts that the applicant’s father in law had been convicted and punished from financial malfeasance and it is plausible that his damaged reputation and past and/or ongoing troubles with the authorities will cause difficulties to the applicant and her spouse if they were to be removed, voluntarily or otherwise, from Australia to Nepal.

5. However, in this review application, the Tribunal is not obliged to make exhaustive findings in the regard as it notes that the first applicant has not applied for a protection visa and is not barred from doing so. Accordingly, the Tribunal only places a small amount of weight on this consideration in favour of the visa not being cancelled.

6. The applicants do not have any children so the Tribunal does not places any weight on the 1990 Rights of the Child Convention to which Australia is a signatory as relevant and it gives it no weight.

   Whether there would be consequential cancellations under s.140

7. As mentioned about the second applicant has his visa consequentially cancelled under s.140. It is not unreasonable nor an unintended consequence of the legislation that family members who hold secondary temporary visa holders are cancelled when the primary visa holders are cancelled. It will keep their migration statuses align and prevent one them being able to remain in Australia while the other must depart.

8. The Tribunal accepts that there will be adverse implications to the second applicant if this visa remains cancelled. It is noted that the second applicant claimed that there were would international obligations or at least some serious complications breached as a result of the visa remaining cancelled. It was further claimed that his father is subject to a prison sentence and a possible property seizure relating to an investment scam for which his father was convicted. As the second applicant is not barred from applying for an onshore protection visa, the Tribunal only places a small amount of weight in favour of this visa not being cancelled.

   Any other relevant considerations

9. No other relevant considerations.

   Conclusion

10. Having found that the first named applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

11. The fact remains the first named applicant was in breach of condition 8202 for a substantial period of time. The first named applicant did not satisfactorily demonstrate that she has been or will be a genuine student strongly motivated to complete a Bachelor’s or a Master’s degree or any other coursework. While the first named applicant had credible extenuating circumstances they were not beyond her control. It was open to the first named applicant to undertake actions to avoid or mitigate her considerable non-compliance which led to the cancellation of the visa. However she did not. Nor did the first named applicant demonstrate any significant or severe hardships arising from this cancellation remaining in place.

12. In this decision, specific unfavourable factors, cumulatively considered, are found to have considerably outweighed those countervailing favourable factors towards not cancelling the first named applicant’s student visa.

13. Considering the circumstances as a whole, the Tribunal concludes that the first named applicant’s visa should be cancelled.

    DECISION

14. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.

15. The Tribunal has no jurisdiction with respect to the other applicant.

    Brendan Darcy
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.