Masood (Migration)

[2022] AATA 4284

Masood (Migration) [2022] AATA 4284 (8 October 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Fahad Masood

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  2200757

HOME AFFAIRS REFERENCE(S):          BCC2020/869961

MEMBER:Christine Kannis

DATE:8 October 2022

PLACE OF DECISION:  Perth

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

Statement made on 08 October 2022 at 11:54am

CATCHWORDS
MIGRATION – cancellation – Student (Class TU) visa – Subclass 500 (Student) – failure to comply with condition of visa – not enrolled in full-time registered course – study history – two courses completed and others ceased or not commenced – enrolment in lower-level courses in different subject areas – new enrolments made after department’s notice issued and tribunal hearing – discretion to cancel visa – death of father – no counselling or deferment sought – lengthy period of non-enrolment – no extenuating or compassionate circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359A, 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a), (b)
Education Services for Overseas StudentsAct 2000 (Cth), s 19(3)

CASE
Liu v MIMIA [2003] FCA 1170

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 14 January 2022 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).

2. 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal by MS Teams video on 23 August 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Procedural Matter

7. On 20 July 2022, the Tribunal sent the applicant an Invitation to Attend a Hearing on 23 August 2022. The Invitation was sent to the applicant’s representative. The Invitation advised:

   Please read and complete the enclosed ‘Response to hearing invitation’ form and

   return it to the AAT within 7 days of receipt of this letter. Please use the ‘Response to

   hearing invitation’ form attached to this letter or attach additional information if you

   have any requests or any new information which you wish us to consider. Any

   documents or written submissions sent to us should be in English or translated by a

   qualified translator.

   If you are not able to appear as scheduled, for instance, if you are not available on this day or you believe you will experience difficulty participating in the hearing as

   arranged, you need to advise us as soon as possible. Please note that we will only

   make changes to this hearing if satisfied that it is reasonable and there are good

   reasons for doing so.

   The Presiding Member will consider any submissions and you will be advised of the

   outcome of that consideration before the hearing. You must assume that the hearing will go ahead as scheduled unless we have advised you otherwise.

8. On 16 August 2022, the applicant’s representative advised the Tribunal as follows:

   We are writing regarding the above-mentioned client.

   We have been trying to contact the client multiple times. However, we are unable to reach him.
   We have not received any further instructions from the client, and we are unable to contact him.
   Thus, we do not want to represent his case. Kindly, contact the client himself in regards to his case.

   His contact details are as:

   Phone: [Number]

   Email: [Address]

9. On 16 August 2022, the Tribunal sent the applicant the following letter. The letter was sent  to the applicant’s representative because as the applicant’s authorised recipient, by law  Tribunal is required to continue to sending correspondence in connection with the review to the representative unless and until the applicant advises otherwise.

   CONFIRMATION OF REPRESENTATIVE NO LONGER ACTING AND

   WITHDRAWAL OF AUTHORISED RECIPIENT – MR MUHAMMAD FAHAD

   MASOOD

   I am writing in relation to the application for review made by you in respect of a

   decision to cancel your Subclass 500 (Student) visa.

   You nominated Mr Ajay Bansal as your authorised recipient to receive correspondence in connection with this review.

   On 16 August 2022 we were told by Mr Ajay Bansal that they no longer represent you in this review and should no longer receive correspondence on your behalf.

   It is important that you now complete and return one of the following forms to us as

   soon as possible. We will continue to send correspondence to Mr Ajay Bansal if you

   do not return either of the forms mentioned below.

   1. Appointment of Representative/Appointment of Authorised Recipient form (MR5)

   If you wish to appoint another person as your authorised recipient and/or

   representative, you should complete this form. When we have received the completed form, all future correspondence will be sent to the newly nominated authorised recipient. Please refer to the reverse side of the form for more information.

   OR

   2. Change of Contact Details form (MR6)

   If you do not wish to appoint another person as your authorised recipient and want all

   future correspondence from us to be sent to you directly, you should complete this

   form to confirm the withdrawal of Mr Ajay Bansal as your authorised recipient. When

   we have received the completed form, all future correspondence will be sent to you.

   If you have any questions, please email [email protected], or contact me on the

   number listed below, or telephone our national enquiry line on 1800 228 333. For

   language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450

10. The applicant did not respond to the letter dated 16 August 2022.

11. The hearing was listed for 23 August 2022 at 12.00 pm (AWST). At 9.30 am (AWST) the applicant’s representative sent the following email to the Tribunal:

    The client has provided his instructions just today that he wants us to represent his case.

    We are aware that he has his hearing today. However, as we did not receive the instructions on time, we are unable to prepare the submission and attend the hearing at the same time.

    Thus, we humbly request you to grant us an extension of at least two weeks to prepare for the submission.

12. The Tribunal considered the request, which was received by the Tribunal 2.5 hours before the scheduled hearing. The Tribunal noted that the applicant did not respond to the Invitation to Attend a Hearing dated 20 July 2022, or the letter dated 16 August 2022. The Tribunal noted that the representative advised that they had tried to contact the applicant multiple times after receiving the Invitation. There is no suggestion that the applicant’s contact details were incorrect.

13. The Tribunal asked the applicant the reasons for his failures to respond to the Invitation and the letter dated 16 August 2022. In response he said it was a matter of timing because he was waiting for funds to arrive from family members. He said he contacted his representative on Friday 19 August 2022 about needing to prepare his case. The representative confirmed that funds were received on 19 August 2022 and on 21 August 2022.

14. The Tribunal considered that the applicant had been given ample opportunity prior to the hearing to provide instructions to his representative or request a postponement of the hearing. He did not do so until the morning of the scheduled hearing. In those circumstances the Tribunal decided to proceed with the hearing and to allow 14 days after the hearing for written submissions to be provided.

15. After the hearing commenced the applicant’s connection to MS Teams was lost. The applicant told the Tribunal that he was attending the hearing on his mobile phone from his car and that his phone battery needed charging. The Tribunal adjourned the hearing for 30 minutes to enable the applicant to travel to the representative’s Adelaide office and attend the MS Teams video hearing from that office.

    Did the applicant comply with Condition 8202?

16. On 16 November 2018, the applicant was granted a visa in Subclass 500 (Student) visa with condition 8202 attached.  

17. 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).

18. 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.

19. 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.

20. On 1 December 2021, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because PRISMS showed he had ceased to be enrolled in a registered course and was therefore failing to comply with condition 8202(2)(a) of his visa. 

    Response to NOICC

21. On 21 December 2021, the applicant responded to the NOICC and provided evidence of a CoE obtained on 15 December 2021. He said he hoped this is what was asked in the visa assurance email sent to him.

    Evidence at hearing

22. 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 Diploma of Information Technology, but this enrolment was cancelled on 15 March 2016 due to Student Notifies Cessation of Studies.

    b.He was enrolled in a Bachelor of Information Technology, but this enrolment was cancelled on 15 March 2016 due to Non-commencement of studies.

    c.He was enrolled in a Diploma of Information Technology Networking, and according to this record, he finished this course on 4 June 2017.

    d.He was enrolled in a Bachelor of Information Technology and Systems, but this enrolment was cancelled on 18 July 2017 due to Non-commencement of studies.

    e.He was enrolled in a Diploma of Business, and according to this record he finished this course on 4 May 2018.

    f.He was enrolled in a Bachelor of Information Systems, but this enrolment was cancelled on 15 April 2019 due to Student Notifies Cessation of Studies; The comment in PRISMS from the service provider is that Student failed to re-enrol into a compulsory study period.

    g.He was enrolled in a Graduate Diploma of Management, but this enrolment was cancelled. The CoE for this enrolment was created on 15 December 2021.

23. The Tribunal explained to the applicant that this information was relevant because it indicates that from 15 April 2019 until after the NOICC issued, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of his Student visa by not maintaining enrolment in a 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.

24. 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. The applicant told the Tribunal that the cancellation of two of his enrolments in 2016 were due to changing education providers  college but could not recall the name of the college. He  finished a Diploma of Information Technology Networking on 4 June 2017 but did not complete the Bachelor of Information Technology and Systems. He said he decided that Information Technology studies were too technical and that he wanted to change to Business studies. He enrolled in a Diploma of Business which he finished on 4 May 2018. The next course he enrolled in was a Bachelor of Information Systems. Noting that he said he had decided not to pursue Information Technology studies, the Tribunal asked him the reason for this enrolment. He said he spoke to a consultant and accepted advice that he needed to enrol in those studies to have his visa extended. He said he took the advice of people who did not know. In response to the Tribunal asking whether he contacted the Department for advice, the applicant said he did not contact the Department.

25. The Tribunal asked the applicant to explain the reason he was not enrolled in registered course from 15 April 2019. He said in August 2018 his sister married  and he spent two to three months overseas before returning to Australia in November 2018. He said at that time he decided to relocate from Melbourne to Adelaide. He said he was admitted into a trade course, an automotive course. He said he went to classes for a few months but terminated his engagement in the course. He said he did not obtain a qualification from undertaking the course. He then moved to a cookery course and studied for four to five months.  He said he did not obtain a qualification from undertaking the course. He then changed to another cookery course which he studied for four months. He said it was that course he was studying when his visa was cancelled.

26. The Tribunal noted that the automotive and cookery courses in which the applicant said he was enrolled were courses that would provide a qualification from the AQF that is at a lower level than the course in relation to which his visa was granted and that this is a breach of condition 8202(2)(b). On that basis, the Tribunal put to the applicant that when he changed study to these courses, he was aware that he was not enrolled in a registered course at the same level or at a higher level than the course in relation to which his visa was granted. He conceded that he was aware that he was not undertaking the required study but said it was his intention to continue with his Business studies after he completed the automotive course. He also told the Tribunal that after completing the Diploma of Business in May 2018, he believed he had a valid CoE for a Bachelor course in Business. The Tribunal asked him whether he had sighted this CoE to which he said he had not. The Tribunal pointed out that PRISMS does not show an enrolment in a Bachelor course in Business at any time. The applicant said he attempted to provide a CoE to the Department when he received the NOICC however it was not accepted.

27. The applicant told the Tribunal that the reason he did not know he did not have a CoE for a Bachelor course in Business was because he has poor judgement and has made poor decisions. He said he did not check to see if he had the required CoE. The applicant told the Tribunal that his record does not reflect that he is a position to say he will make good decisions in the future, but he desperately needs a good decision.

28. When asked about the hardship that may result from cancellation of his visa, the applicant said he has spent five or six years in Australia and has only completed two diploma courses. He said without other qualifications he will not be able to get a job and support himself.

    Post hearing evidence

29. Following the hearing the applicant provided copies of CoEs and a written submission.

30. A CoE created the day after the hearing on 24 August 2022 was provided. The CoE was for the applicant’s enrolment in a Bachelor of Business course commencing on 16 January 2023.

31. The other CoEs provided were in relation to the courses recorded in the applicant’s PRISMS record and outlined in paragraph 23 hereof. The following additional CoEs were provided:

    ·CoE for a Certificate III in Carpentry created on 21 May 2019 for a course commencing on 27 May 2019 and ending on 25 May 2020. This enrolment was cancelled on 1 March 2021 for non-commencement of studies.

    ·CoE for a Certificate IV in Building and Construction created on 21 May 2019 for a course commencing on 22 June 2020 and ending on 21 June 2021. This enrolment was cancelled on 1 March 2021 for non-commencement of studies.

    ·CoE for a Certificate III in Light Vehicle Mechanical Technology created on 1 May 2020 for a course commencing on 4 May 2020 and ending on 2 May 2021. This course was completed.  

    ·CoE for a Certificate IV in Automotive Mechanical Diagnosis created on 1 May 2020 for a course commencing on 7 June 2021 and ending on 5 June 2022. This enrolment was cancelled on 21 May 2021 for non-commencement of studies.

    ·CoE for a Certificate IV in Commercial Cookery created on 6 May 2021 for a course commencing on 1 August 2022 and ending on 30 January 2023. This enrolment was cancelled on 24 December 2021 for non-commencement of studies.

32. The written submission set out the following information:

    ·He first came to Australia on a Student visa (Subclass 500) in October 2015 to study a Diploma in Information Technology leading to Bachelor of Information Technology.  He started his classes, and it was going well.

    ·In 2016, his father passed away. He was very close to his father and he went through a hard time processing the news.

    ·He completed a Diploma in Information Technology in June 2017, but his academics were not really good. It was hard for him to understand the subjects and he really struggled to pass the course. Also, he was not able to focus on his studies due to the news of his father’s death. Therefore, he decided to change the course. He left the Bachelor of Information Technology course and enrolled in a Diploma of Business which he completed in May 2018.

    ·After that he enrolled in a  Bachelor of Information Systems at Holmes Institute in August 2018. He started the course but as the course progressed, he struggled to understand the subjects and complete the assignments. He was still going through a hard time over his father’s death. He lost all motivation for doing anything. Therefore, he was unable to complete the course.

    ·After that he moved to Adelaide and enrolled in carpentry and building and construction courses. He then enrolled in automotive courses and later he also had a CoE for a cookery course.

    ·He was at the lowest point of his life and did not know where he was heading. Losing his father was the biggest shock in his life and he was not able to move on. He was not able to concentrate on his studies and was just hopping from one course to another hoping he could do better.

    ·When he received the Student visa cancellation notice he realized he was messing up his life. He wanted to do better in life.

    ·His Student visa was cancelled in January 2022 on the grounds that he did not have any CoE from 15 April 2019 until 15 December 2021. However, he did have the enrolments throughout the mentioned period.

    ·He is currently enrolled in a Bachelor of Business course which will start in January 2023. He enrolled for this course as he has previously completed the Diploma in Business and he realized he wants to continue business studies.

    ·He is aware his education records have not been good, and he has explained his circumstances for the same.  

    ·He is a genuine student and wants to complete his study in Australia.  If the Tribunal grants the visa, he will complete the course and return to Pakistan for a better future.

1. Following receipt of the additional CoEs from the applicant, the Tribunal conducted a PRISMS search and ascertained that the applicant has multiple Student Identification numbers. Accordingly, in addition to the CoEs set out in paragraphs 22 and 31 hereof, the applicant had the following enrolments:

   ·CoE for a Certificate III in Commercial Cookery for a course commencing on 7 June 2021 and ending on 4 July 2022. This enrolment was cancelled on 24 December 2021 for non-payment of fees.

   ·CoE for a Certificate III in Commercial Cookery created on 6 May 2021 for a course commencing on 18 January 2022 and ending on 8 May 2022. This enrolment was cancelled on 8 February 2022 for non-payment of fees.

   ·CoE for a Certificate IV in Commercial Cookery created on 6 May 2021 for a course commencing on 1 August 2022 and ending on 30 January 2023. This enrolment was cancelled on 8 February 2022 for non-commencement of studies.

   ·CoE for a Diploma of Hospitality Management for a course commencing on 27 February 2023  and ending on 10 July 2023. This enrolment was cancelled on 24 December 2021 for non-commencement of studies.

   ·CoE for a Diploma of Hospitality Management for a course commencing on 27 February 2023  and ending on 10 July 2023. This enrolment was cancelled 8 February 2022 for non-commencement of studies.

2. The Tribunal invited the applicant to comment on these further CoEs, all of which were  cancelled. The invitation was sent pursuant to s 359A of the Act and confirmed that during the hearing the Member raised the issue that the courses in which he was enrolled after 15 April 2019 were not from the same AQF level for which his visa was granted, and this failure to maintain enrolment at the required level is a breach of condition 8202(2)(b).

3. In response the applicant said:

   The case officer raised the concern that the courses in which I was enrolled after 15 April 2019 were not at the same Australian Qualification Framework level for which your visa was granted. I want to say that initially when I changed the course, I enrolled for Diploma of Business leading to Bachelor of Information Technology Systems. Thus, there was no difference in the Australian Qualification Framework level as I was enrolled for a diploma course leading to bachelors at the time of visa grant as well.

   I completed the course Diploma of Business and started Bachelor of Information

   Technology Systems. However, I was unable to complete the course as I was not able to do well. I was struggling to understand the subjects and complete the assignments.

   As mentioned in my previous submission, due to my father’s death, I was not in a proper state of mind and had lost faith in myself and my life. That time, I was at the lowest point of my life, and I did not know where I was heading. That is why I was jumping from one course to another and got myself enrolled in different courses which also included diploma level courses.

   However, now I have enrolled in the Bachelor of Business at Central College which will commence in January 2023. After going through all the hard situations in life, I have finally gathered myself and decided to complete my studies and get a degree. I enrolled for the business course as I completed the Diploma in business earlier and I realized that I want to further continue my business studies and get the degree.

4. In the present case, the applicant's visa was cancelled on the basis the applicant was not enrolled in a full-time registered course from 15 April 2019 :condition 8202(2)(a).

5. As noted, condition 8202(2)(b) requires the visa holder to maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

6. The applicant was granted a Subclass 500 (Student) visa on 16 November 2018 in relation to the registered course of a Bachelor of Information Systems. The highest CoE in relation to which the visa was granted would provide a Level 7 bachelor's degree qualification from the AQF. The PRISMS records indicate that the course was cancelled on the 15 April 2019 in the Bachelor course.

7. From May 2019 until the NOICC was issued on 1 December 2021, the applicant obtained several enrolments in Certificate III and Certificate IV courses all of which, with the exception of one Certificate III course, were cancelled.

8. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course at the same level as, or higher level than, the registered course in relation to which the visa was granted from 15 April 2019 to 1 December 2021. Accordingly, the applicant has not complied with condition 8202(2)(b).  

9. 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

10. 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.

11. 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

12. The applicant told the Tribunal his purpose in coming to Australia was to study Information Technology. He subsequently changed his mind and decided to pursue Business studies.

13. The purpose of the applicant’s visa was to enable him to study a registered course that will provide a qualification from the AQF that is at the same level as or at a higher level than, the course in relation to which the visa was granted. The applicant’s PRISMS record indicates that he has completed a Diploma of Information Technology Networking and a Diploma of Business however he ceased study at the required level form 15 April 2019 . Therefore from 15 April 2019 he was not enrolled in study which was consistent with the purpose of a Student visa.  At the time the NOICC was issued, the applicant had not been enrolled in a registered course that will provide a qualification from the AQF that is at the same level as or at a higher level than, the course in relation to which the visa was granted for a period of 2 years 8 months.

14. The applicant stated that he obtained a new CoE following the issuing of the NOICC. This was a CoE for a Graduate Diploma of Management which was created on 15 December 2021. A CoE for a Bachelor course created on the day after the hearing was provided to the Tribunal. These CoEs appear to have been obtained as a consequence of the cancellation decision and as such the Tribunal places no weight on them as evidence that the applicant was fulfilling the purpose of his travel and stay in Australia from 15 April 2019 until the NOICC was issued. The applicant’s enrolment in the Graduate Diploma of Management has been cancelled and as noted, the CoE for the Bachelor of Business  was created the day after the hearing and the course commences on 16 January 2023.

15. 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 for a lengthy period of 2 years 8 months.  

16. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia.  In response he said he wants to have something to show that he didn’t waste all of his time. The Tribunal does not consider this constitutes a compelling need.

17. 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

18. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a registered course that will provide a qualification from the AQF that is at the same level as, or at a higher level than, the course in relation to which the visa was granted since 15 April 2019. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions.

19. The applicant’s non-compliance for an extended period of 2 years 8 months prior to the NOICC weighs in favour of visa cancellation.

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

20. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him. The Tribunal gives this some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

21. The applicant’s visa was cancelled as a result of his failure to maintain enrolment in a registered course condition 8202(a). The Tribunal has found the applicant breached condition 8202(b). The applicant told the Tribunal he mistakenly believed he held a CoE for a Bachelor course in Business. He did not see the CoE and did not check to make sure he had the required CoE. He said his failure to enrol in a course at the required AQF level was caused by poor decision making on his part.

22. The Tribunal notes that the applicant’s written submission repeatedly refers to his father’s death in 2016 as a reason for his struggling with his study. The Tribunal notes that during the hearing the applicant did not contend that his father had passed away or that this was a factor which contributed to his non-completion of courses. No evidence was provided to substantiate that the applicant’s father passed away in 2016. No evidence was provided to substantiate the applicant’s contention that he was unable to complete the Bachelor of Information Systems in 2018 because he was still going through a hard time due to the news       of his father’s death, or his contention that after relocating to Adelaide he was at the lowest point of his life. No evidence that the applicant sought a deferment from his studies on compassionate grounds was provided. No evidence that he sought counselling or medication was provided. The Tribunal is of the view if he was so mentally affected he could not study, he would have sought help as he has claimed he was in Australia to study.

23. In any event the applicant’s failure to maintain the correct enrolment from 15 April 2019 was at least three years after the time the applicant contended his father passed away.

24. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case. The Tribunal gives this weight in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the department

25. In the written submission the applicant indicated that he was the holder of a Bridging visa. The Department’s records however show that he has not held a visa since 14 January 2022, and he is currently unlawfully onshore. On receipt of this information the Tribunal sent the applicant an invitation to comment on the information pursuant to s 359A of the Act. In response the applicant said:

    I believe as my visa was cancelled and I applied for the review of my case at AAT, I should have had a Bridging Visa E. However, I have applied for a Bridging Visa E. I will attach the reference with this submission. I should get a Bridging Visa E soon.

26. It is not clear from the applicant’s response whether he believed he had been granted a Bridging visa on cancellation of his Student visa and therefore he did not apply for one. The applicant has now applied for a Bridging visa and the Tribunal is prepared to accept that he mistakenly believed he held a Bridging visa and that is the reason he did not regulate his immigration status sooner. A Department of Home Affairs Tax Invoice dated 21 September 2022 evidencing the application for the Bridging visa was provided.  Accordingly the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s.140

27. 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

28. 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

29. 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

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

    Conclusion

31. 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 it has formed the view that the applicant is not fulfilling the purpose of his travel to and stay in Australia as he is 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 and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

32. 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

33. 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.