Lander Bonillo (Migration)

[2018] AATA 280

Lander Bonillo (Migration) [2018] AATA 280 (25 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Cesar Alberto Lander Bonillo

CASE NUMBER:  1706240

DIBP REFERENCE(S):  BCC2017/219879

MEMBER:Susan Trotter

DATE:25 January 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

Statement made on 25 January 2018 at 4:36pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Requirement to be a genuine student – Significant period of non-enrolment – Not a genuine student – Consideration of discretion – Adverse effect of cancellation on mental health – Security situation in home country – Grounds for cancellation outweigh hardship caused

LEGISLATION
Migration Act 1958, s 116, 116(1)(fa)(i), 116(1A), 119, 189, 359AA
Migration Regulations 1994, rr 2.43(1C), 2.43(1D), Schedule 8, Conditions 8202, 8516

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 20 March 2017 made by a delegate of the Minister for Immigration and Border Protection (the Minister) to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The applicant is a citizen of Venezuela and was granted the visa on 21 April 2015 (valid until 7 June 2017) to study in Australia.

3. The Department of Immigration and Border Protection (the Department) initially wrote to the applicant on 27 January 2017 in relation to an intention to cancel his visa. On 21 February 2017, the Department sent a formal Notice of Intention to Consider Cancellation (NOICC) of the visa to the applicant, pursuant to s.119 of the Act, on the basis that the applicant’s lack of progress over a substantial period of time (having not studied since 22 March 2016) appeared to indicate that the applicant’s primary intention was not likely to be to undertake study. On 17 March 2017, the applicant responded to the NOICC.

4. The delegate cancelled the visa on 20 March 2017 pursuant to s.116(1)(fa)(i) of the Act on the basis that the applicant was not, and not likely not to be, a genuine student, and that the grounds for cancelling the visa outweighed the grounds for not cancelling the visa.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 27 March 2017.

6. The applicant appeared before the Tribunal on 28 November 2017 to give evidence and present arguments.

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

   ISSUES

8. 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).

9. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student.

10. In MIMA v Hou [2002] FCA 574, the Court stated 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]).

11. 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 Minister or Tribunal 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.

    …

12. 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.

13. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise the discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances, including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’ including:

    (a)  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;

    (b)  the extent of compliance with visa conditions;

    (c)  degree of hardship that may be caused (financial, psychological, emotional or other hardship);

    (d)  circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control;

    (e)  past and present conduct of the visa holder towards the department;

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

    (g)  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;

    (h)  whether there would be consequential cancellations under s.140;

    (i)    whether any international obligations would be breached as a result of the cancellation; and

    (j)    any other relevant matters.

14. It follows that the issues to be determined by the Tribunal are:

    (a)  Does the ground for cancellation exist? And, if so,

    (b)  Should the discretion to cancel the visa be exercised?

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. On 17 March 2017, the applicant responded to the NOICC, via an email from his migration agent, as follows:

    We are instructed that our client nonattendance at school was due to his Phycological condition and was never his intention to breach visa conditions.

    In support of this claim we submit the following:

    1.Psychologist report;

    2.GP referral letter, and

    3.Copy of information about his attendance obtained from Imagine School.

    [sic]

16. The report of Lucy Prieto, psychologist, dated 6 March 2017 stated as follows:

    Dear Sir/ Madam

    I have seen Cesar for two sessions of assessments after being referred for psychological interventions due to his levels of anxiety increasing as a result of receiving a letter from Emigration Department which informed him that his visa to stay in Australia could be revoked.

    Cesar presented as a young and friendly male who easily connected during the initial assessment while expressing his concerns openly about his current situation with Emigration. Cesar displayed an anxious mood and unsettled affect which were displayed by him being fidgety and his rapid and shallow breathing. Cesar's language denoted a sense of helplessness about being in a situation he didn't want to be and not knowing how to resolve it. He displayed a good level of awareness about how the matter was impacting on his life.

    The Issue:

    1.Cesar reported that he failed to attend to classes which is his major obligation with DIBP to be able to stay in Australia with a student visa

    2.Cesar stated that he was employed by a restaurant

    3.Cesar stated that he was given many responsibilities by the employer.

    4.Cesar stated that during the last few months he has not been able to do many things as a result of the stress caused by the employer giving him extra chores after the head chef left suddenly. Many of these tasks were beyond his capacity causing him high levels of anxiety

    5.Cesar also reported that he starter to sleep less hours which caused him to start feeling ill and unable to make sense of things

    6.Cesar informed that he lost track of time and that his decision making processes started to fail due to his poor concentration and inability to focus on other things apart from work

    7.Cesar stated that his anxiety to high and that he would wake up in the middle of the night with nightmares about things not being done at work

    Background Facts:

    1.Cesar arrived in Australia with an student visa about 12 months ago

    2.Cesar left his country of origin, Venezuela, due to the levels of violence being out of control

    3.Cesar's family have also flee out of the country escaping from the violence and their lives being at risk

    Childhood/ Past History:

    1.Cesar disclosed a traumatic childhood while growing up in a dysfunctional home with domestic violence issues

    2.Cesar was exposed to violence and trauma from a very early age which have never been treated or attended by professionals

    3.Cesar witnessed many situations of violence recalling one where his maternal grandfather threaten his father by putting a gun to his father's head

    4.Cesar reported that after parents separated, he became the recipient between his parents conflicts

    5.Cesar informed that from an early age he was used by both parents as the communicator between them as they were unable to manage their relationship issues.

    6.Cesar reported feeling helpless and hopeless as a child and young person in not being able to resolve the issues between his parents

    7.Cesar reported feeling extremely anxious on a regular basis as a child and young person 'waiting for the next time' when his parents would put him in between them and their conflicts

    8.Cesar reported that his ongoing sense of helplessness in resolving all the issues caused him to develop deep sadness over time

    9.Cesar stated that he was assaulted a gun point many times before leaving Venezuela

    10.He stated that his anxiety was always extremely high while expecting to be assaulted and fearing for his life or the life of his relatives while living in Venezuela

    11.Cesar reported feeling unsafe during all the time he was in Venezuela as a child and then as a young person

    Assessment Measures:

    Depression Anxiety and Stress Scale (DASS)

    The DASS is a self report measure comprising a set of three scales designed to measure core symptoms of depression, anxiety, and tension/ stress with maximum discrimination

DASS Scale	Session on 16.02.2017
Depression	Moderate (16)
Anxiety	Extremely Severe (32)
Stress	Mild (16)

The results suggest that Cesar is experiencing Extremely Severe levels of anxiety, Moderate levels of depression and Mil levels of stress at the moment.

Formulation of Information:

Cesar has been exposed to trauma and violence from a very early age causing him to develop high levels of anxiety throughout his life. Research informs us that a child exposed to traumatic events causes the Limbic System or the Survival Mechanism (Flight or Fight Response) in the brain to be over-activated. We also understand that the over activation of Flight or Fight Response would reshape the brain of the child causing an instant reaction, or connection between events and the survival mode, overpassing the rational part of the brain.

We also understand through research that high levels of anxiety, in any given situation, will cause the individual to become survival focused; and that the executive functioning of the brain will be compromised. As the executive functioning of the brain, or frontal lobe, is mitigated by the flight or fight response, our ability to make decisions, problem solving, organising, remembering, and prioritising are all attenuated.

We also understand through research that a child needs to grow up in a safe and protecting environment in order for the first concepts or interpretations of the world around us, to be that the world is a predictable and safe place to live in. On the other hand, if the child has grown up in a dysfunctional home with fear and feeling unsafe; the interpretations of the world will be that is unsafe place and that he needs to be on the alert in order to survive.

What we observe by the information disclosed by Cesar, is that he was born in an unsafe environment learning that the world was unsafe and that in order to survive he would have to be vigilant and never put his guard down. These first concepts or schemas of life were then reinforced by the political and environmental arrest in his country. Being assaulted at gun point a few times during his early adolescent and young adult life has only reinforced his schemas of the world being an unsafe place.

After working with extra responsibilities and his levels of anxiety increasing, he most probably started to suffer from executive functions such as remembering things and organising him self better to attend to his responsibilities.

At the moment Cesar is still experiencing high level of anxiety which are causing him to have nightmares, not being able to sleep or eat well. Cesar states that he cannot understand how he failed to attend to his responsibilities and that when he looks back he just sees a blur of events that he cannot put in order. He also stated loosing track of time since he arrived in Australia with an inability to recall events accurately.

He also stated that he is terrified of his visa being revoked and having to go back to Venezuela and having to relive all the violence and lack of support and safety.

Recommendation and Future Treatment:

I believe that given the past history and circumstances of Cesar's arrival in Australia what we observe is a result of an over-activation of his Limbic System and that he never intended to fail to attend to his responsibilities as an international student.

My recommendations are to give Cesar all the support he needs to overcome his anxiety and reshape his brain to a healthy level through psychiatric and psychological interventions. This can only be done by providing Cesar with a safe environment.

My recommendations are to review Cesar every 3 months to see his progress and to develop a care plan that includes ongoing support from the community and professionals.

[sic]

1. The information obtained from Imagine School, provided in response to the NOICC, stated as follows:

   Cesar Alberto Lander Bonillo – 152536, had an end date of 12/02/2016 for his certificate III commercial cookery. He had very poor attendance.

   He had a progress warning letter issued on 24/09/2015. Previous to this he had a finance warning letter on 20/08/15, and an financial intension to cancel on 14/10/15.

   He handed in 3 out of 25 assessment, yet as they were all missing the practical assessments due to lack of attendance he was marked ‘not yet competent on cancellation of his course.

   [sic]

2. The applicant gave affirmed evidence before the Tribunal at hearing. Given the report of Ms Prieto dated 6 March 2017 and the applicant’s evidence, as summarised below, the Tribunal gave consideration to whether the applicant should be treated as a Vulnerable Person pursuant to the Migration Refugee Division’s Guidelines on Vulnerable Persons. Pursuant to the Guidelines, a vulnerable person is a “person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed.” The Tribunal is satisfied that the applicant engaged fully in the review process. He was articulate, offered information and spontaneously and fully responded to the Tribunal’s questioning. He showed an awareness of his circumstances and an insight into the issues the Tribunal was required to consider, as discussed with him. Having considered all of these matters, the Tribunal concluded that the applicant was able to understand and effectively present his case and fully participate in the Tribunal process. Nonetheless, the Tribunal monitored the hearing closely and took extra time to explain issues with the applicant and ensure his understanding of matters. The Tribunal was satisfied that the process was fair and just with the applicant demonstrating that he was able to fully put his case to the Tribunal and participate in the process.

3. The applicant’s evidence to the Tribunal may be summarised as follows:

   (a)  When he first came to Australia on a Subclass 573 (Higher Education Sector) visa, the Venezuelan government was contributing towards his studies; $10,000 for his English course and about $13,000 all up including for food and rent etc. That was a one-off payment. After he left Venezuela, the economy dropped even further and they stopped paying to every single student so that is why he swapped visas to a 572 (Vocational Education Training) visa. It was too expensive to continue with the Diploma of Commerce and Bachelor of International Business without the support of the Venezuelan government. He therefore decided to change study plans and it was only going to cost $6,000 to $7,000 which was going to be funded by a combination of assistance from his mother and him working.

   (b)  He commenced a Certificate III in Commercial Cookery in May or June 2015. He was then having some personal problems and he stopped going to school in November or December 2015 and his enrolment was cancelled. He was working at the time, in a kitchen, and he was thinking why study when he already knew what to do.

   (c) The Tribunal put some information to the applicant pursuant to section 359AA of the Act as follows:

   (i)The Tribunal stated to the applicant that it had some information that it had to tell the applicant before it asked him some questions. The Tribunal stated it would give the applicant an opportunity to respond to or comment on that information. The Tribunal stated that it was going to put some information to the applicant that would, subject to the applicant’s comments or response, be the reason or part of the reason, for affirming the decision under review to refuse to grant the visa. The Tribunal indicated it would explain the information and its relevance and ask the applicant if he wished to respond to or comment on the information. The Tribunal advised the applicant that he was entitled to seek additional time to respond to or comment on the information and if he wished to do so, he should let the Tribunal know.

   (ii)The Tribunal stated that it had information before it that was information that on 27 January 2017, the Department sent the applicant a letter entitled “Notice of Intention to Cancel 572 visa under section 116”. The letter set out a number of matters, in particular, that the Department had information that the applicant had not been enrolled in a course of study since 22 March 2016 and that on that basis, the Department indicated that it considered that the applicant had not complied with a condition of his visa which required him to remain enrolled in a full-time course of study and training. The Tribunal started that the information included that a letter was also sent to the applicant by the Department on 21 February 2017, noting that the applicant had not been enrolled in a course of study since 22 March 2016, and that the Department was concerned that the applicant had breached a condition of his visa, that is that he was not a genuine student or likely to be a genuine student.

   (iii)The Tribunal indicated the reason the information is relevant is because it includes that from 22 March 2016 he was in breach of at least one if not two conditions of his visa [8202 and 8516], and further it is also relevant that the Department first wrote to the applicant about these issues on 27 January 2017, prior to him re-enrolling in another course. The Tribunal indicated that this information is relevant to the decision as to whether his visa should be cancelled and might cause the Tribunal to reach a conclusion such that it would have to affirm the decision under review.

   (iv)The Tribunal asked the applicant if he understood the information set out and why the information was relevant. The applicant indicated that he understood. The applicant indicated he wished to comment on or respond to the information there and then. He said that he did not receive anything from the school throughout the whole of 2016. They did not send him anything. The Tribunal discussed with the applicant that it was his responsibility to maintain enrolment. The applicant said he knows that and he realised that and his head was not right. The Tribunal queried whether he had spoken to anyone at the school about why he was not going to the school and that he had medical issues. The applicant said part of the problem is that he keeps everything to himself. His psychologist now says that he a “big big big” deficit of attention. She said he needs medication however it is too expensive. He knows he should do things but he doesn’t. He does not know why he does not do these things. He did not contact the Department to tell them that he was not studying. He is messing himself up. He does not know why. He offers his help to other people rather than helping himself.

   (d)  When queried as to when he first went to see a doctor to seek some advice about the mental health issues affecting him, the applicant responded that he went to the doctor in the first month after receiving the first letter. The Tribunal noted that a letter of Dr Suarez dated 15 February 2017 confirmed that she had referred the applicant to a psychologist. When queried, the applicant stated that he had not sought any medical treatment prior to that and that it was not until he was notified by the Department that he sought treatment. The Tribunal indicated to the applicant that that might cause the Tribunal to hold a concern that the applicant did not have any mental health issues that stopped him studying given he did contact the school about such issues and that it was not until after he was told that his visa might be cancelled, that he first sought treatment. The Tribunal indicated that when taken into account with the fact that by the beginning of 2017, the applicant on his evidence had not studied at all since November 2015, a substantial period of time, and with study being the purpose of his presence in Australia, it might suggest that the applicant is not genuinely in Australia to study. The Tribunal observed that it also acknowledged that mental health issues can be difficult to deal with and that by their very nature might prevent someone from seeking treatment. When queried, the applicant stated that he saw the psychologist in March 2017 and then had another three to four appointments, with the last appointment being in approximately June 2017.

   (e)  He enrolled in another Commercial Cookery course and was attending two days per week but he cannot attend the course anymore because he did not pay the full fees. He has had bad luck/ bad experience with jobs which has made it difficult to pay. He then was sick with the flu.

   (f)    If the visa is cancelled it will cause him hardship because he knows from friends of his who have just arrived from Venezuela that things are desperate in Venezuela with people they know looking for food on the street and people being robbed in the middle of the town where he is from.

   (g)  His mother is now living in the United States of America (USA). She moved there last year. She applied for a political visa.

   (h)  He has not had much contact with his father since leaving Venezuela. They speak twice a year. His mother and father were divorced when he was eight. He has some uncles and a grandmother in Venezuela but no-one to whom he is close.

   (i)    If his visa is cancelled, he may as well kill himself because he would die slowly in Venezuela. He has discussed these sort of feelings with psychologist but he has not felt as strongly about it as he does now.

   (j)    When queried as to whether he has investigated going to live with his mother, the applicant stated that would be his last option, going to the USA. He has not investigated whether he would be able to join her there. His mother is not able to leave the USA for three years.

   (k)   He just wants to get residence in Australia. He has close friends here.

   (l)    At the moment his mother is the only one who knows about the visa cancellation. He is not good about sharing these types of things. She is a good support to him and he is close to her.

   (m) He does not like to tell his mother his problems any more than he has to but she does help him out financially whenever she can. She sends him $150/$200 every few weeks.

   (n)  If the visa is cancelled his parents, particularly his mother, will also experience emotional and financial hardship.

   (o)  He has been a bit young and immature, just having fun in Australia, but realises now it is all very serious.

   (p)  He was not originally thinking of studying hospitality but it is the easiest way to get money in Australia. He loves cooking. He has found from doing the jobs here that he likes working with foods. That is why he looked into the commercial cookery courses, however he knows what to do from his work and does not see why he needs to study.

   (q)  He has been growing his hair and he would like to donate his hair to help other people.

   Issue 1 - Does the ground for cancellation exist?

1. There is nothing before the Tribunal to indicate that the applicant’s participation in a course had been deferred or temporarily suspended by the provider of the course.

2. It is not in dispute that the applicant was not enrolled in any course of study between 22 March 2016 and 13 February 2017. Consistent with the applicant’s evidence, he enrolled in a further Certificate III in Commercial Cookery from 13 February 2017 with that course being cancelled in November 2017.

3. The information from Imagine School that the applicant provided to the Tribunal indicated that he had very poor attendance, handed in only 3 out of 25 assessments and had been issued with a number of warnings.

4. The applicant’s evidence to the Tribunal included that he did not study for a long period of time, that he only re-enrolled in another course, in February 2017, after receipt of the first letter from the Department dated 27 January 2017 and that he believes he does not need to study. In this regard he told the Tribunal he does not see why he should have to study when he already knows how to cook from his jobs.

5. It is also clear that the applicant’s financial circumstances are modest and payment of fees has also been a continual issue for him.

6. Having taken into account all of these matters, the Tribunal finds that the applicant is not, or is likely not to be, a genuine student. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) exists.

7. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

   Issue 2 - Should the discretion to cancel the visa be exercised?

8. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in PAM3, ‘General visa cancellation powers’ as referred to earlier in these Reasons.

9. The purpose of the visa granted to the applicant was for the applicant as a non-citizen to undertake study in Australia. However, the applicant was not enrolled in any course of study from 22 March 2016 until he enrolled in a further Commercial Cookery course on 15 February 2017. Notably the re-enrolment by the applicant only occurred after being contacted by the Department, by letter of 27 January 2017, about the possibility of his student visa being cancelled.

10. As already noted, the Tribunal does not consider the applicant to be, or likely to be a genuine student and rather considers the applicant’s real purpose is to remain in Australia by whatever means he can. It is of course understandable that the applicant wishes to remain in Australia given the commonly known difficult situation (including in relation to general safety and economical issues) in his home country of Venezuela and the Tribunal has considerable sympathy for his position. However, that is not the purpose for which a student visa is granted. The Tribunal considers these matters weigh very significantly in favour of exercise of the discretion to cancel the visa.

11. As regards the circumstances which have given rise to the visa cancellation, based on the applicant’s evidence, lack of finances have been a contributing factor. However, the Tribunal is not satisfied that the circumstances have been beyond the applicant’s control. His evidence was that he has worked in hospitality in Australia including because it is the easiest way to get money. He has not shown any focus on study. Further, the applicant freely admitted that he does not feel he should have to study when he already knows how to do his job. The Tribunal considers that overall the circumstances which have given rise to the visa cancellation weigh in favour of the visa being cancelled.

12. If the applicant’s visa is cancelled, he could become an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. He would have limited options to apply for any other visas in Australia. He could also be subject to an exclusion period. However, these are intended legislative consequences of cancellation and they are consistent with the objectives of the migration program. Accordingly, the Tribunal is not satisfied that there are consequences of the cancellation which mean that the visa should not be cancelled.

13. The Tribunal accepts that the applicant and his family may suffer emotional, financial and psychological hardship if his visa is cancelled, and further, that personal safety and economical conditions in his home country of Venezuela may well be challenging. However, the applicant has the option of exploring joining his mother in the USA and does also have family in Venezuela. The Tribunal also accepts that cancellation of the visa may have an effect on the applicant’s mental health, as is suggested by Ms Prieto, psychologist, and as indicated by the applicant at hearing. The Tribunal places significant weight on the hardship that may be caused in these respect as weighing against cancellation of the visa.

14. Nothing adverse is known about the applicant’s past and present conduct towards the Department. The Tribunal places some weight on this as weighing against cancellation of the visa.

15. There is no evidence that there are persons in Australia whose visas would, or may, be cancelled under s140. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

16. The Tribunal is not aware of any other considerations to be taken into account in relation to the cancellation.

    Conclusion

17. The Tribunal placed considerable weight on the emotional, financial and psychological hardship that may be caused to the applicant and his family if the visa is cancelled. However, on balance and considering the circumstances as a whole, the Tribunal consider that the factors weighing in favour of exercise discretion to cancel the visa, as canvassed in these Reasons, outweigh the matters weighing against cancellation and finds that visa should be cancelled.

    DECISION

    The Tribunal affirms the decision to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa.

    Susan Trotter
    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.