Lau (Migration)

Lau (Migration) [2024] AATA 1930 (7 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Chi Laam Lau
CASE NUMBER:  2303048
HOME AFFAIRS REFERENCE(S):          BCC2022/5300016
MEMBER:Christine Kannis
DATE:7 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 07 June 2024 at 7:03pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – previous Student visa expired – period of unlawful residence – gap in enrolment – family health issues – course cancellations – availability of a compulsory course – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4014; Schedule 8, Condition 8202; r 1.03
CASES
Plaintiff M64/2015 v MIBP [2015] HCA 50
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 1 March 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 27 May 2024 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Cantonese and English languages.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Immigration history
The delegate set out the applicant’s immigration history which included:
·On 23 September 2017 the applicant arrived in Australia as the holder of a Student visa to undertake study at the University of New South Wales (UNSW) in a Transition Program course and Bachelor of Commerce (all specialisations) course from 26 February 2018 to15 January 2021.
·PRISMS indicates the applicant completed the Transition Program course and the Bachelor of Commerce course. PRISMS also indicates on 15 March 2021 UNSW approved a CoE for him to continue studying the Bachelor of Commerce course with a commencement date backdated to 15 February 2021 and a proposed end date of 31 May 2022 (ceased studying 2 September 2021).
·The applicant’s Student visa expired on 15 March 2021 and he became unlawful, staying in Australia for 7 months and 22 days. According to Departmental systems the applicant was sent an email on 28 February 2021 advising his Student visa would soon cease. On 16 March 2021 and 28 March 2021 he was sent further emails advising his Student visa had ceased on 15 March 2021. Departmental systems indicate that on 2 February 2021 and 28 May 2021 while he was onshore, he used the Department’s Visa Entitlement Verification Online system (VEVO) to check his visa details and therefore he was aware his Student visa was about to expire and then had expired however he chose to remain in Australia without applying for a further visa.
·On 5 November 2021, the applicant applied for a Bridging E visa. The application form stated “The applicant applied for CoE but forgot to extend his Student visa. When he realised his visa was expired, Sydney was in lockdown…”
·On 25 December 2021, the applicant departed Australia holding the Bridging E visa and as that visa was not granted within 28 days of his Student visa ceasing, he was affected by Public Interest Criterion (PIC) 4014 and was subject to an exclusion period of 3 years which prevented him from being granted certain types of visas.
·On 16 February 2022, the applicant lodged an application for a further Student visa while offshore. In the Application for a Student visa form he provided the CoE code for his intention to continue his studies in the Bachelor of Commerce course at UNSW. He commenced studying the course offshore on 14 February 2022 and was due to complete the course on 15 January 2023. The delegate assessing PIC 4014 for the application invited the applicant to comment. The applicant said he did not receive the visa expiry reminder emails because he changed his email address and was not aware his Student visa expired on 15 March 2021 and provided evidence he continued studying in the Bachelor course after the visa expired. However his VEVO checks show he was aware his Student visa expired on 15 March 2021.
·On 30 March 2022 the applicant was granted the Student visa and arrived in Australia on 5 April 2022. On 19 May 2022 he ceased his studies in the Bachelor of Commerce course and on 13 July 2022 his CoE was cancelled by the education provider with the comments “Student has failed to recommence studies in Term 2, 2022 and has not contacted the university to discuss their intentions”. According to the UNSW website, Term 2 study period was from 30 May 2022 to 25 August 2022.
·The applicant did not depart Australia until 20 October 2022 and remained in Australia on the Student visa without studying for a period of 5 months. He also failed to depart Australia within 28 days after his enrolment was cancelled and remained onshore for 3 months and 7 days in non-compliance with his Student visa condition.
·On 6 December 2022, the applicant attempted to board a flight from Hong Kong to Sydney. A departmental airline liaison officer (ALO) questioned him about his studies. He advised he was aware he was not enrolled in a course but needed to return to Australia to pack up his belongings. He indicated he would apply for a different visa to return to Australia. The ALO determined he appeared to have not been complying with his visa condition by not being enrolled in a registered course of study and referred this information on to airline, who decided to offload him.
·The applicant most recently entered Australia on 6 January 2023.
Did the applicant comply with Condition 8202?
On 30 March 2022, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 13 July 2022 to 3 January 2023. The CoE was created on 12 December 2022 however approval by UNSW was provided on 4 January 2023. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 13 July 2022 to 3 January 2023 and the Tribunal finds that he breached condition8202(2)(a) of his visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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’, as set out below.
On 17 January 2023, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 13 July 2022 and 3 January 2023 and had therefore failed to comply with condition 8202(2)(a) of his visa.
Response to NOICC
On 22 January 2023, the applicant responded to the NOICC and provided the following:
·Statutory declaration dated 22 January 2023 in which he stated:
oFrom 25 September 2017 he is a student of UNSW and taking the Bachelor of Commerce (the Course). He completed 11 terms of the Course;
oHe is required to complete 18 Units (i.e. three courses);
oFrom 13 July 2022 to 3 January 2023, he did not enrol any courses for the following reasons:
(i)One of the core courses, ACCT3583 – Strategic Value Management (ACCT3583) was cancelled by UNSW in Term 2 2022, and he could not enrol in this course until Term 1 in 2023;
(ii)His father had a thyroid disorder and from March 2021 to October 2022, his father told him of: a. difficulties in sleeping; b. fast heart rate; c. nervousness and irritability; d. diarrhoea; and e. sensitivity to heat;
(iii)His father underwent blood tests in Hong Kong and his results were not within the normal range. He was treated for 12 months but did not improve. At the end of October 2022, his father’s thyroid disorder became stable. From March 2021 to October 2022 he felt nervous and worried about his father’s health situation; and
(iv)Due to the cancellation of ACCT3583, he could not complete the Course before Term 3, 2022, therefore, would like to give himself a break for releasing of his stress and complete the remaining 18 Units in Term 1, 2023.
·Applicant’s University of NSW Academic Transcript;
·Letter dated 19 January 2023 from UNSW which provided information including that the course ACCT3583 was not available to the applicant in Term 2 2022 due to academic and other personal circumstances. The letter stated the applicant will be awarded his degree by the end of Term 1 2023 if he successfully completed his last 3 courses in which he is enrolled in Term 1 2023; and
·Thyroid screening profile document for applicant’s father.
Additional information provided to the Department
On 31 January 2023, UNSW provided the following information to the Department:
The student did not enrol in any courses in Term 2 2022 or apply to take program leave or defer from UNSW therefore he was reported in Prisms as failing to re-enrol and his COE was cancelled. He was administratively withdrawn from UNSW.
In late 2022 (7/12/22) the student contacted UNSW to be readmitted. The student noted in their request that "I recognised that the course ACCT3583 which is a compulsory course for my degree is not available till term 1 2023"
This was not correct, ACCT 3583 was offered in Term 3 2022. Student was subsequently readmitted to their program on 09/12/22.
Overall the student made no effort to enrol in Terms 2 or 3 2022 or apply for Program Leave.
On 1 February 2023, the Department sent the applicant an Invitation to Comment on the information. He was advised that the information was relevant to the proposed cancellation of the Student visa including considerations of the extent of compliance with visa conditions and the circumstances in which the ground for cancellation arose because:
·In response to the NOICC he advised that the ACCT3583 course was cancelled by UNSW in Term 2, 2022 and he could not enrol in this course until Term 1, 2023. He provided a letter from UNSW stating he was unable to complete his degree by the expected completion date due to the course ACCT3583 not being available in Term 2 2022 and other academic and personal circumstances.
·He provided his UNSW Academic Statement which shows he is enrolled in the following courses for Term 1, 2023: ACCT3583 - Strategic Value Management ; ACCT3610 - Business Analysis and Valuation; and   FINS2643 - Wealth Management and Client Engagement . According to the 2022 UNSW Handbook, course ACCT3583 was offered in Terms 1 and 3 in 2022; course ACCT3610 was offered in Terms 1 and 2 in 2022; and course FINS2643 was offered in Terms 1, 2 and 3 in 2022.
·    According to the UNSW website, Term 2 was from 30 May 2022 to 25 August 2022 and Term 3 was from 12 September 2022 to 8 December 2022.
·    He remained in Australia during Term 2 2022 and the courses ACCT3610 and FINS2643 were offered during this period. He was also in Australia for the start of Term 3 2022 and the course ACCT3583 was offered during this period.
·    Student visa holders who are no longer able to study in Australia, should obtain a deferment with their education provider, apply for a new visa in line with their new purpose to remain in Australia, or depart Australia, within 28 days after their enrolment cancellation date. The UNSW website lists the relevant advice for international Student visa holders.
On 11 February 2023 the Department received a response to Invitation to Comment from the applicant’s representative. The response included the following:
·Applicant’s statutory declaration dated 9 February 2023 in which he stated:
oACCT3583 is one of the core subjects of the Course, many students would fight for a place of ACCT3583 in Term 3, so they could graduate the course on time;
oReferring to UNSW’s Timetable 2022, it stated that ACCT3583 Please join the waitlist if the course is full. We regularly monitor waitists to organise seats in the course. For more information please visit: ; He misunderstood that he did not have chance to get it ACCT3583 in Term 3;
o(iii) He thought that it was hard to succeed to enrol ACCT3583 in Term 3;
oHe was not concentrating and/or well preparing in anything due to his father’s health issues; and
oHe was not aware that if he failed to enrol any course during his study, his student visa could be cancelled.
Copy of the UNSW’s Timetable 2022
Evidence provided at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:
a.He was enrolled in a Transition Program which he finished on 19 January 2018;
b.He was enrolled in a Bachelor of Commerce (all specialisations) which he finished on 15 January 2021;
c.He was enrolled in a Bachelor of Commerce (all specialisations) which was cancelled on 19 October 2021 due to Student Notifies Cessation of Studies;
d.He was enrolled in a Bachelor of Commerce (all specialisations) which was cancelled on 13 July 2022 due to Student Notifies Cessation of Studies.
e.He was enrolled in a Bachelor of Commerce (all specialisations) which was approved with a commencement date 13 February 2023 and which has been cancelled.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 13 July 2022 to 3 January 2023 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering his purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. He said he disagreed that his enrolment in a Bachelor of Commerce (all specialisations) with a commencement date 13 February 2023 was cancelled and told the Tribunal that he was undertaking that study from February to May 2023 and he graduated in January 2024. He said the delay in graduation was due to a student misconduct issue. The Tribunal allowed the applicant additional time within which he could provide evidence that he was undertaking study from February to May 2022.
Following the hearing the applicant provided a UNSW Course Enrolment showing his enrolment in ACCT3610, FINS2643 and ACCT3583 in Term 1, 2023. The document is not dated apart from indicating registration closes on 19 February 2023. As noted from PRISMS, the applicant was enrolled in a Bachelor of Commerce (all specialisations) with a commencement date 13 February 2023 and which was subsequently cancelled. This was explained to the applicant at the hearing. The Tribunal is prepared to accept that the applicant may have been re-admitted to the course after cancellation however even if this was the case, he was not enrolled in any courses from 13 July 2022 to 3 January 2022.
The Tribunal referred to the delegate’s decision and asked the applicant about his remaining unlawfully in Australia for 7 months and 22 days and his knowledge that his visa had been cancelled because he accessed the Department’s VEVO system. In response the applicant said he noticed at the time that his visa had been cancelled but he couldn’t re-apply by himself. He said he contacted a migration agent who told him it was too late. Another migration agent advised him to ask the university for help but he did not do that because of COVID-19 and lockdowns.

The Tribunal referred to the delegate’s decision and asked the applicant about his advising the ALO in Hong Kong that he needed to return to Australia to pack up his belongings. In response he said at that time he thought he could complete his course online. He said his accommodation contract in Australia was coming to an end and he had to move out before the end of December 2022.
The Tribunal referred the applicant to his NOICC response in relation to his reasons for not enrolling in any courses from 13 July 2022 to 3 January 2023. Regarding his statement that the ACCT3583 course was cancelled by UNSW in Term 2 2022, the Tribunal referred the applicant to the advice from UNSW on 31 January 2023. In response the applicant told the Tribunal that he only checked the availability of courses in Term 1 each year. He said UNSW must have changed the availability during the year and he did not know it was offered in Term 3 until a few weeks into the term. No evidence was provided to substantiate the applicant’s claim that UNSW changed the availability of the course during 2022. Noting his references to the course in his statutory declaration dated 9 February 2023, the Tribunal asked about the statements that many students would fight for a place of ACCT3583 and waitlisting of courses and that he thought that it was hard to succeed to enrol ACCT3583 in Term 3. In response he said ACCT3583 is a popular course and because he applied for enrolment after the course commenced in Term 3 2022, he was too late. No evidence was provided that he attempted to enrol in any course in Term 3 2022.
The Tribunal noted that during Term 2 2022 the courses ACCT3610 and FINS2643 were offered however the applicant did not enrol in these courses until 2023. In response the applicant told the Tribunal that he likes to group all his study together in one term and that was the reason he did not enrol in these courses in Term 3 2022.
Regarding his claim in his NOICC response that his father’s illness was also a reason for not enrolling in any courses from 13 July 2022 to 3 January 2023, the applicant told the Tribunal that in 2021 his father had a thyroid health issue. He said his mother hid the severity of the condition from him but his sister told him about it. He said he did not know what was happening with his father’s health and this placed him under pressure and he experienced stress and was unable to concentrate.
Regarding his claim in his NOICC response that due to the cancellation of ACCT3583 he could not complete his course before Term 3 2022 and therefore would like to give himself a break for releasing of his stress and complete the remaining units in Term 1 2023, the applicant said he had failed units in 2021 and this together with his fathers’ health affected his confidence. No evidence was provided to demonstrate that the applicant suffered stress in 2022. The Tribunal asked the applicant whether, given his claimed stress, he sought a deferral of his study from UNSW. In response he said he did was not aware that he could request a deferral. The Tribunal asked the applicant whether, given he had decided not to study in Term 3 2022, he contacted the Department about his visa status. In response he said it was too complicated. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.
In response to the Tribunal asking how he spent his time in Term 3 2022, the applicant said he stayed home most of the time and also spent time with friends and with his puppy.
The Tribunal put to the applicant that he would have known from 13 July 2022 that he was no longer enrolled in a course and was not abiding by the conditions of his visa and asked him the basis on which he considered he was allowed to remain in Australia. In response he said he had no idea.
When asked about the purpose of his travel to Australia, the applicant told the Tribunal that he came to Australia to study on campus because he prefers that to online study . In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he needs to take care of his puppy and Australia is better than his home country.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said he wants to apply for a Subclass 485 visa so he can work in Australia and if his visa is cancelled he will not be able to do so. He said his accommodation in Hong Kong will not allow him to have his puppy living with him. He also said he has been with his partner for 12 months and a long distance relationship may be difficult.
Non-disclosure certificate
At the hearing the Tribunal noted a certificate had been issued under s 376 in relation to information on the Department file BCC2022/5300016 on the basis that disclosure of this material would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods, and s.375A does not apply. The Tribunal noted it has a discretion under s 376 to disclose the information on the file. The Tribunal stated it considered the certificate contained a valid ground of public interest immunity not to disclose the information. The applicant made no comment in relation to validity of the certificate.
The Tribunal informed the applicant the information was relevant to the review because it may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study and may also be relevant in considering the discretion to cancel the Student visa.
The Tribunal put to the applicant under s 359AA of the Act information covered by the certificate. The Tribunal put to the applicant that the information included the Department’s records of his addresses, correspondence/case notes and Cancellation Assessment which included information contained in the delegate’s decision.
The Tribunal also put the applicant that the information covered by the certificate included an Australian Border Force ALO visa cancellation consideration referral dated 5 December 2022 in relation to his attempt to enter Australia. The referral reason was stated to be: Non-genuine diploma and false declarations provided in student visa application and recorded that the applicant stated he understood he was not enrolled in a course but needed to return to Australia to pack up his belongings and said he would look to apply for a different visa to return to Australia. The certificate also covered an Australian Border Force Routine Event Report dated 6 December 2022 which stated that onshore checks confirmed his CoE had been cancelled and therefore he did not meet the conditions of his Student visa.
The applicant’s comment on the information covered by the certificate was that on 5 December 2022 he knew he was not enrolled in a course in 2023 but he was not aware that lack of enrolment breached his visa conditions. He also confirmed his earlier evidence that his reference to packing up his belongings was because his accommodation contract was due to end.
The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.
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
The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 6 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3]
[3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he referred to his puppy and Australia being better than Hong Kong. The Tribunal does not consider these constitute a compelling need.
The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study for a period of 6 months. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
The Tribunal finds that non-compliance for an extended period of 6 months weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him because he may not be able to apply for a Subclass 485 visa, he may not be able to have his puppy live with him and a long distance relationship with his partner may be difficult. The Tribunal also notes that in his NOICC response he said if his visa is cancelled he would waste the money he has spent in the course.
The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 6 months prior to the issuing of the NOICC. He told the Tribunal that this was due to the unavailability of the ACCT3583 course, the stress he experienced as a result of his previous study failures, his preference to study all his units in one term and his father’s illness. He said some of these factors caused him to feel stress and under pressure which affected his ability to concentrate.
Regarding the unavailability of the ACCT3583 course, the applicant’s evidence at the hearing was that he checked the courses offered in Term 1 each year and UNSW must have changed the availability of the course after Term 1 2022. As noted, no evidence was provided to substantiate the claim that UNSW changed the availability of the course and in any event, in the Tribunal’s view it is the responsibility of the visa holder to be informed of the availability of units offered in their course. The applicant’s reason for not enrolling in ACCT3610 and FINS2643 in Term 3 2022 was that he preferred to study all his units in one term.
Regarding the applicant’s claim that his previous study failures and his father’s illness caused him experience stress and which resulted in an inability to concentrate, no evidence was provided to substantiate the impact of these matters on the applicant or that they resulted in an inability to concentrate. In relation to the applicant’s claim that because of these matters he needed a break, the Tribunal notes that even if these matters had a debilitating effect on the applicant, he did not seek a deferment of his study because he said he was not aware he could do so and he did not contact the Department about his visa status because it was complicated.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he ceased to be enrolled in a registered course from 13 July 2022. The applicant did not attempt to enrol in a course until 12 December 2022. The Tribunal gives the evidence weight in favour of cancellation.
Past and present behaviour of the visa holder towards the Department
The applicant’s immigration history is set out above and includes that he claimed he did not receive the visa expiry reminder emails because he changed his email address. It is a visa applicant’s responsibility to ensure changes in his contact details are provided to the Department in a timely manner.
The applicant claimed he was not aware his Student visa expired on 15 March 2021 and provided evidence he continued studying after the visa expired. However, based on his VEVO checks, he was aware his Student visa expired on 15 March 2021. The applicant remained in the Australian community unlawfully for a period of seven months and 22 days before he departed Australia on a Bridging E visa. He told the Tribunal that he remained unlawfully in Australia because of COVID-19, lockdowns and because he could not re-apply for a visa himself.
The Tribunal finds that there is some evidence that the applicant has behaved inappropriately with the Department however is prepared to accept his explanation and gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. 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. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
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
There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation.
The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Christine Kannis
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2024] AATA 1930

7 June 2024

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