LE (Migration)

[2019] AATA 2556

LE (Migration) [2019] AATA 2556 (10 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VAN PHAT LE

CASE NUMBER:  1711734

HOME AFFAIRS REFERENCE(S):           BCC2017/1292188

MEMBER:Melissa McAdam

DATE:10 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 10 July 2019 at 1:38pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – ceased to be enrolled in a Higher Education Sector course – consideration of discretion – unsatisfactory attendance record – lack of commitment and ability to complete studies in Australia – Education Agent’s advice and assistance – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

CASES
Ibrahim v MHA [2019] FCAFC 89
Singh v MIBP [2016] FCA 679

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 May 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

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

3. The delegate cancelled the visa under s.116(1)(b) on the basis that he was satisfied the applicant had not complied with a condition of the visa. That condition was Condition 8516 – the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.

4. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

5. The applicant’s Student visa was granted on 7 March 2016, with an expiry date of 15 March 2020.

   NOICC

6. On 18 May 2017 the delegate sent a Notice of Intention to Consider Cancellation of the applicant’s Student visa (NOICC), under s.116 of the Act. In the notice the delegate set out Criteria 573.231 and 573.223 (1A)

   573.231

   If subclause 573.223(1A) does not apply:

   (a)  the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

   (b) the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

   (i) made under regulation 1.40A; and
   (ii) in force at the time the application was made.

   eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

   (a) the applicant is enrolled in a principal course of study for the award of:

   (i) a bachelor’s degree; or
   (ii) a masters degree by coursework;

   (b)  the principal course of study is provided by an eligible education provider;

   (c) if the applicant proposes to undertake another course of study before, and for the
   purposes of, the principal course of study:

   (i) the applicant is also enrolled in that course; and
   (ii) that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

   573.223 (1A)

   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:
       (a) the applicant gives the Minister evidence that the applicant has:

   (i) a level of English language proficiency that satisfies the applicant’s eligible education provider; and
   (ii) educational qualifications required by the eligible education provider; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i) the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
   (ii) any other relevant matter; and

   (c) the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i) the costs and expenses required to support the applicant during the proposed stay in Australia; and
   (ii) the costs and expenses required to support each member (if any) of the applicant’s family unit.

7. In the NOICC the delegate set out information that the applicant ceased to be enrolled in a higher education type course on 19 December 2016, and that since then he had not held enrolment in a course of study of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

   Response to NOICC

8. On 25 May 2017 the applicant wrote to the Delegate stating that he had been notified by the University of Newcastle that his enrolment in a Bachelor of Business had been cancelled. He appealed and was frustrated by the appeal process. In January he applied for a Bachelor of Business at another institution. He needed a Certificate IV in business to be eligible to register for the course. He is currently studying at the institution to complete the Certificate IV  so he can be eligible for enrolment in the Bachelor of Business. He attached a Confirmation of Enrolment (CoE) from Australian Harvard International College for a Certificate IV in Business, commencing 6 February 2017, with end date 16 July 2017.

   Delegate’s Decision

9. On 29 May 2017 the delegate cancelled the applicant’s visa. The delegate referred to information that the applicant’s enrolment in a Bachelor of Business was cancelled on 19 December 2016, and the applicant had not held enrolment in a higher course of study since that date.

   Pre-Hearing Submission

10. On 11 June 2019 the applicant’s Agent provided a written submission to the Tribunal containing the following:

    -Submissions by the Agent that

    §aspects of the reasons for the applicant’s lack of study and failure to remain enrolled for the relevant periods were within his control but there were also circumstances and situations beyond his control.

    §the Tribunal should exercise its discretion to set aside the decision to cancel the applicant’s visa.

    §After arriving in Australia the applicant first undertook a 30-week course of study in English at the university. He found himself struggling with his studies, including failing his intermediate level English studies and subsequently discovering that his CoE had been cancelled for lack of attendance.

    §The applicant sought advice from an education agent, whom he instructed to speak on his behalf in correspondence with the University of Newcastle to revert the cancellation of his CoE.  Instead the agent advised the applicant to enrol at a different institution, the Australian Institute of Higher Education (AIHE). The AIHE advised the applicant he could not study there without a Cert IV in Business.

    §The agent arranged for the applicant to enrol in a Cert IV in Business at AHIC. The applicant attended classes for this course and studied this course as required. Unfortunately, his Subclass 573 visa was cancelled and his CoE at AHIC was then cancelled.

    §The applicant was then advised to enrol and study a Diploma of Leadership and Management at Institute X, which he did in 2018. In the applicant’s opinion, Institute X had no concern for the quality of their courses or teaching, so the applicant decided to stop studying at Institute X and await a decision on his visa.

    §The applicant desperately wishes to continue his studies and study a course in Business or Business Management. However the institutions that provide quality courses and teaching require students to hold a valid visa for such study, whereas institutes like Institute X, which do not require a visa, provide very poor education and low-quality courses.

    §At the time that his problems with study arose, he sought advice from an education agent in Australia and entrusted the entire process and actions involved to the education agent.

    §The applicant realised his mistakes in not maintaining a better attendance and hoped that he would be afforded a second chance to amend his ways. However, the agent’s advice was that the applicant ought to enrol at other institutions. As the applicant trusted the agents at the time, he agreed and believed that they would be able to find a place for him in the appropriate courses for his goals.

    §However, the applicant eventually discovered that the agent had only referred him to another institution because he would be gaining a commission from his referral to the institution, and the actual result was that the education agents allowed his University of Newcastle enrolment to lapse without any correspondence. Ultimately, this meant that the applicant was enrolled in a Cert IV that was not appropriate for meeting the conditions of his visa, which led to the current visa cancellation.

    §The applicant’s purpose for entering Australia has always been to study. He had numerous times sought advice and attempted to find a course of study that was suitable for his education goals in line with the advice that he had received from the education agent. However, through actions and consequences that were not in his control, he was left unable to study a suitable course and, even now, he has only been able to enrol in a course that is not sufficient for his study goals.

    §Even after his visa has been cancelled and especially after he realised the sub-optimal advice that he had received from the education agent, the applicant continued to take steps to enrol in relevant courses and continue his studies in Australia.

    §Aside from the non-compliance with condition 8516,the applicant has a history of compliance with his visa conditions and good behaviour and conduct towards the Department.

    -Enrolment form to the Australian Institute of Higher Education for a Bachelor of Business, dated 20 May 2017.

    -Confirmation of Enrolment to the Australian Harbour International College for a Certificate IV in Business, dated 17 January 2017.

    -Academic Transcript for the Certificate IV in Business undertaken by the applicant in 2017. The record shows ‘Not Yet Competent’ for two subjects, ‘Competent’ for three subjects, and ‘Enrolled’ for five subjects.

    -Letter of Offer from the Institute X of Business and Technology for a Diploma of Leadership and Management, dated 13 October 2017.

    Tribunal Hearing

11. The applicant appeared before the Tribunal on 18 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The following is a summary of the information provided by the applicant at the hearing:

    a.When the applicant came to Australia he applied to attend a course of business management. He had to spend 30 weeks studying English before he could commence the course.  After 25 weeks he received information that the school had cancelled his course of study because he did not attend class enough. The school sent him a caution.  When he received this he continued to go to school.  Every week he went to study but his teacher informed him his name was no longer on the class list.  The teacher advised him to see the Principal. The Principal told the applicant he had failed to report so his enrolment was cancelled.

    b.The applicant panicked and contacted an Agent. He had just arrived in Australia and did not know much about what to do.  His Agent told him he needed to find somewhere else to enrol.  The Agent helped him to enrol in another college.  He started to pay the course fees.  He attended the new college and learned about finance.  After 5 months he received the Department’s letter informing him they wanted to cancel his visa.  He was given 5 days to respond.

    c.He later contacted his Agent for help and was advised to apply to the Tribunal.  While waiting for the Tribunal to progress his application his Agent helped him enrol in a business management course at another college, Institute X.

    d.He attended the Institute X course for about one year. After one year he found the quality of the course not worthwhile, so he stopped attending while he waited for the Tribunal decision.

    e.When he first arrived in Australia he attended an English course and liked the college which hosted the course.  So he asked his Agent to re-enrol him in that college to learn English. But his Agent advised him that the college would not accept his return.  He now realises the Agent did not want him to go there because the Agent wanted a commission from another college.

    f.His study plans are to follow his friend’s recommendation to study business at Kent Institute.  He will first contact his new Agent regarding the college or university for  better education.  His friend has recommended Kent College to study Business Management.  The full title of the course is Bachelor of Business.  He will try his best to successfully complete the course.

    g.He has completed two courses of English with his first college, ‘Intermediate’ and ‘Elementary’.  He received a Statement of Marks for Elementary English. He will provide a record of this to the Tribunal.  He has not yet completed the Intermediate English course.

    h.When he applies to enrol in Business Management the university will first test his English.  If his English is not good enough they will arrange for him to learn English before he enters the course.

    i.The course he enrolled in at Institute X was Business Management Bachelor.  It was not  bachelor degree. It was a “Diploma Manage of Business”.  He began study in the course about two months after he applied to the Tribunal, in 2017.  He stopped studying in 2018. He finished the first term but then felt the course was not of good quality.  The teachers did not convey the lessons of the course properly. They just came and gave the exercise test.  In the course the subjects he studied were ‘Business management’.  The Tribunal asked him what classes he attended and the applicant responded he was not sure. He accessed the course through a website and received exercises.  He can’t remember what classes he attended in the course.

    j.The Tribunal put to the applicant under s.395AA that his PRISMS education history record did not include a ‘Diploma in Business Management’ or ‘Diploma Manage of Business’.  The applicant asked for time to respond and a ten minute adjournment of the hearing was granted. When the hearing resumed the applicant stated that he can’t remember exactly the name of the course because in the original application he applied for Business Management.

    k.The applicant confirmed that there has been a period of time in Australia in which he has not been enrolled in a higher course of education.  This was when his enrolment in the course at his first college was cancelled and he was trying to enrol in another course.  He thinks his Agent did not do a good job for him.

    l.The applicant came to Australia because he wanted to attend a higher education quality course in business.  He had poor attendance during his English language course because at that time he used to contact friends and talking with them during the night. He did not sleep enough and it affected his attendance.  He has now learned a lesson.

    m.When he came to Australia he enjoyed study here but because he didn’t understand the situation much and that there would be consequences.

    n.His parents have paid for all his education courses and most of his expenses in Australia.  They wish him to be successful in his education.  He found some part-time work to help with his expenses.  He is no longer working.  He didn’t complete courses his parents paid for because he told them he wanted to study a Business Management  course.

    o.The Certificate IV Business course he was enrolled in was for 6 months.  He did not complete it because he was just learning about finance and his visa was cancelled.  The school automatically cancelled his enrolment when his visa was cancelled.  His Agent told him about the cancellation.  He had been attending classes in the Certificate IV Business course.  He can’t remember what classes he attended, it was a long time ago.  He has had too many difficult problems. The classes were in the college near St James.  He did not got to the college to ask if he could continue his enrolment  in the course. His Agent dealt with this.  He didn’t try himself because he didn’t really know his CoE had been cancelled, the school continued to send him invoices.

    p.The Tribunal asked what ‘NYC’ meant on his academic record and he responded it was for subjects he had failed.  He passed two subjects and two subjects he failed.  He failed them because they were completely new subjects for him. The Tribunal put to him that according to the transcript he submitted, one of the two subjects he failed was ‘Organise Meetings’.  The applicant responded he didn’t have enough information to complete the tasks in the subject.

    q.The applicant needs to stay in Australia because he wants to successfully complete his study in Australia as him parents want and rely on him to do this.  He wants to stay here for his study, that is all. He is still young.  If he returns to Vietnam without completing study he thinks his future will be dark and his parents will be very disappointed.  It will be a big shock to them.  He needs to complete his business management course and with qualifications he can start his career plan in Vietnam.

    r.He already attended education courses in Vietnam but the education system in Australia is better.  There is no point trying to obtain a qualification in Vietnam. He believes this because he attended university in Vietnam. He studied an automobile industry course and graduated in 2015. He learned about design and construction of automobiles in theory, not practically.

    s.His parents hoped to send him to Australia to study and he has failed to do that.  Because his  study plan has just reached half way and is now broken his future is very difficult.  He would like another chance.

    t.Because his parents’ expectations are very high he will have failed in his duty to them if he does not study well.  It will be very stressful when he goes back to Vietnam.  He will feel ashamed around friends and relatives.  He does not know what he would do in Vietnam.  

    u.The Tribunal put to the applicant that he was able to complete a university course in Vietnam but was unable to complete introductory courses in Australia, which indicated he may have more educational success in Vietnam with the support of his family and without language difficulties. The applicant responded that in Australia he has a very big opportunity to learn English.

    v.He has learned his lesson due to the significant consequences of his actions.  He passed some subjects in his Diploma course. He will try to submit his academic record from the course.

    Post-Hearing Submission

12. On 8 July 2019 the applicant submitted the following written information to the Tribunal:

    -    A statement of results from the University of Newcastle for the Applicant’s Elementary level English course.

    -    Correspondence between the Applicant and representatives at the University of Newcastle relating to the decision to cancel the Applicant’s CoE on grounds of unsatisfactory attendance.

    -    A Confirmation of Enrolment from AHIC for a Diploma of Business.

    -    A Letter of Offer from AHIC for a Certificate IV in Business and a Diploma of Business.

    -    A Statement of Attainment from Institute X for the Applicant’s Diploma of Leadership and Management.

    -    A submission by the applicant’s Agent stating that, although the grounds for cancellation may have existed, the Tribunal should exercise its discretion to set aside the visa cancellation because the evidence demonstrates the Applicant’s genuine intentions and desire to study in Australia.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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)(b). 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.

   Does the ground for cancellation exist?

   s.116(1)(b) - non-compliance with conditions

2. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of the visa. In this instance condition 8516 is attached to the applicant’s visa.

3. Condition 8516 requires that the visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.  In respect of a criterion requiring the applicant to be enrolled, it has been held that this requires the applicant to maintain enrolment while they hold the visa: Singh v MIBP [2016] FCA 679.

4. Relevantly, it was a criterion for grant of the applicant’s Subclass 573 visa that the applicant met cl.573.231 if they were not an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student.

5. The definition of ‘eligible higher degree student’ requires that the applicant is enrolled in a principal course with an ‘eligible education provider’ that is a bachelor’s degree, masters degree by coursework or, for visa applications made on or after 23 November 2014, an advanced diploma in the higher education sector: cl.573.111. ‘Eligible education provider’ means an education provider specified in an instrument made under cl.573.112. The relevant instrument specifying education providers as eligible education providers for this visa was IMMI 16/003.

6. To satisfy cl.573.231 the applicant must be enrolled in, or be the subject of a current offer of enrolment in a principal course of a type specified for that subclass by the Minister in an instrument under r.1.40A that was in effect at the time of the visa application. ‘Principal course’ is defined in r.1.40. The relevant instrument under r.1.40A in effect at the time of the visa application was IMMI 14/015.

7. IMMI 14/015 specifies that the types of courses eligible for the Subclass 573 visa are:

   -  Diploma (Higher Education)

   -  Advanced Diploma (Higher Education)

   -  Bachelor Degree

   -  Graduate Certificate (Higher Education)

   -  Graduate Diploma (Higher Education)

   -  Associate Degree

   -  Masters by Coursework

8. The evidence before the Tribunal indicates that the applicant ceased to be an eligible higher degree student on 19 December 2016 when his enrolment at the University of Newcastle was cancelled. The applicant has not disputed this evidence and has provided correspondence from the University of Newcastle confirming the cancellation of his enrolment on this date.  The Tribunal therefore finds that the applicant ceased to be an eligible higher degree student on 19 December 2016.

9. Since that time  the applicant has enrolled in three courses, namely a Certificate IV in Business, a Diploma of Business, and a Diploma of Leadership and Management.

10. The Certificate IV course the applicant enrolled in is described in the Commonwealth Register of Institutions and Courses for Overseas Students (’CRICOS) to be Vocation Education and Training (or ‘VET’)[1], not a higher education course.  The Diploma of Business course is described in the CRICOS to be a VET type of diploma[2], not a higher education diploma.  The Diploma of Leadership and Management Course is also described in the CRICOS to be a VET type of diploma[3], not a higher education diploma. On the basis of this information and the applicant’s oral and written evidence the Tribunal finds that the applicant has not been enrolled in, or the subject of a current offer of enrolment in, a  principal course specified in an instrument under r.1.40A in force at the time the application was made, since 19 December 2016.

    [1] See the CRICOS entry page for the AHIC Certificate IV in Business course at See the CRICOS entry page for the AHIC Diploma of Business course at See the CRICOS entry page for the AHIC Diploma of Business course at

11. 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 the visa should be cancelled.

    Consideration of discretion

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

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

13. The applicant came to Australia to study.  He commenced study but his enrolment was cancelled after several months due to his unsatisfactory attendance record.  The applicant has undertaken brief periods of other study over the two and a half years he has remained in Australia.  He has passed several subjects and failed other subjects.  On his evidence he did not complete the courses he enrolled in during this period.  The Tribunal considers that the applicant has demonstrated only a low level of  engagement in his studies in Australia. 

14. The applicant has expressed a need to remain in Australia in order to complete studies and obtain a qualification, so as to improve his career prospects in Vietnam, and not disappoint his parents or shame himself.  The Tribunal accepts that the applicant believes his employment prospects in Vietnam will be improved by gaining an education qualification in Australia, and that his parents will be very disappointed and he will be ashamed if he does not successfully do this.

15. As put to the applicant he was able to successfully complete a university level course in Vietnam but he has struggled to attend courses and pass subjects, and even to comprehend the nature of the courses he has enrolled in, while in Australia. He has withdrawn from his latest course on the claimed basis it was poor quality, despite his past struggles to pass simple subjects and despite the benefits that would be gained by showing that he can successfully complete a course of education. The applicant cannot accurately remember or describe the courses he has enrolled in and he cannot remember or name the subjects or classes he claims to have attended. The Tribunal considers these matters do not support the applicant’s claim to need to remain in Australia to complete higher education here.  The Tribunal does not accept that the applicant genuinely intends to resume and complete his studies in a higher degree in Australia.  In the Tribunal’s view the applicant has demonstrated little commitment to, and ability for, study and completing higher education courses here

16. While the Tribunal accepts the applicant has a personal wish to remain in Australia it does not consider his need to do so, compelling.

17. The Tribunal does not view these factors as weighing against the Tribunal’s exercise of its discretion to cancel the applicant’s visa

    The extent of compliance with visa conditions

18. There is no indication that the applicant has not complied with any other condition of his visa.  The Tribunal therefore gives this factor some weight in favour of the applicant’s case.

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

19. The applicant has stated that his future career plans in Vietnam rely upon him completing a higher education course in Australia.  While the cancellation of his visa may result in the applicant’s capacity to earn in Vietnam being lower than he hopes, the Tribunal does not consider that his evidence indicates a particular level of hardship that would warrant not cancelling the applicant’s visa.

20. The applicant has also stated his parents will be very disappointed and shocked if he returns to Vietnam without completing his studies. The Tribunal accepts this will be likely given the financial outlay of the applicant’s parents for his study and residence in Australia and their hopes for his future. The Tribunal considers the financial hardship and emotional distress for the applicant’s parents is a factor that weighs in favour of not cancelling his visa.

21. The applicant has also stated that he will feel shame in front of his friends and relatives if he returns to Vietnam without completing his studies. The Tribunal also accepts the likelihood of this occurring.  However it is a result of the applicant’s own lack of efforts in attending his initial language course, and since that time he has not demonstrated much focus upon reversing his behaviour.  The Tribunal does not consider that this factor weighs against the Tribunal exercising its discretion to cancel the applicant’s visa.

    Circumstances in which ground of cancellation arose.

22. The applicant provided oral and documentary evidence, which is accepted, that his enrolment in the required type of course was cancelled due to his unsatisfactory attendance record at his preliminary English language course.  When asked about this at hearing, the applicant stated he was too tired from socialising with friends to attend some classes.  He stated he did not realise the consequences of his actions would be so serious. The circumstances in which the ground for cancellation arose are therefore due to the applicant’s admitted irresponsible behaviour.  The Tribunal considers this factor weighs in favour of the Tribunal exercising its discretion to cancel the applicant’s visa.

23. The applicant also blames his former Education Agent for poor advice and assistance which led to the cancellation of his visa. While there may have been alternative options the applicant’s Education Agent could pursue so that the applicant’s visa was not cancelled, it is unclear what these may have been.  The applicant has provided copies of his personal email correspondence with the education provider in November 2016, leading up to the cancellation of his enrolment.  In this correspondence the applicant does not specifically ask to overturn the enrolment cancelation, but understandably seeks clarification of his status. The applicant also had the capacity to take some remedial action himself to improve his attendance and respond to the education provider’s concerns, when first warned of the consequences of his attendance record.  On the information before the Tribunal he did not do so but relied upon his education agent to sort out his situation. The Tribunal considers that these factors do not weigh against the exercise of the Tribunal’s discretion to cancel the applicant’s visa.

    Past and present behaviour of the visa holder towards the department

24. The applicant has been responsive and cooperative with both the Department and the Tribunal in the matter of his visa cancellation.  The Tribunal therefore gives this factor some weight in favour of the applicant’s case.

    Whether there would be consequential cancellations under s.140

25. There is no evidence of any consequential cancellations under s.140 of the Act.

    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

26. The cancellation of the applicant’s visa means that he could potentially become an unlawful non-citizen, subject to detention and removal from Australia. There is no suggestion that the applicant will be indefinitely detained. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future he would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a further visa for up to three years. However, those are the intended consequences of the legislation and do not weigh in favour of the applicant in the Tribunal's discretion to cancel his visa.

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

27. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there will be a risk of harm. Australia is a signatory to a number of international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

28. “Non-refoulement obligations” is not confined to the protection obligations to which s.36(2) of the Act refers: see Ibrahim v MHA [2019] FCAFC 89 at [103]. It is defined in the Migration Act 1958 to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.

29. The applicant stated at hearing that his only reason for not wanting to return to Vietnam was so he could remain in Australia temporarily to complete studies.  He would then be able to return to Vietnam. He stated if he has to return before completing his studies here, his problems in Vietnam would amount to disappointing his parents, feeling ashamed, and having reduced options for his future career. None of these problems entail serious harms which would attract non-refoulement obligations.

30. The Tribunal finds that in the circumstances of this case cancellation would not lead to removal in breach of non-refoulement obligations.

31. There is no evidence before the Tribunal that the cancellation of the applicant's visa would result in Australia breaching any obligations regarding the best interests of children.

32. The Tribunal therefore considers that these factors do not weigh against the Tribunal exercising its discretion to cancel the applicant’s visa.

    If a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

33. The applicant’s Subclass 573 visa is not a permanent visa.

    Any other relevant matters

34. There are no indications of any other relevant matters.

    Conclusion

35. The student visa program in Australia enables people who are not Australian citizens or permanent residents to undertake study in Australia. The applicant has remained onshore for an extended period without being enrolled in an approved course of study, in breach of his visa conditions.

36. The Tribunal has considered all of factors before it and finds that individually and cumulatively they do not outweigh the seriousness of the breach.  Balancing discretionary factors, the Tribunal determines to exercise its discretion to cancel the visa

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

    DECISION

38. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Melissa McAdam
    Member