Neupane (Migration)

[2020] AATA 2337

Neupane (Migration) [2020] AATA 2337 (26 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abhinaw Neupane

CASE NUMBER:  1718194

HOME AFFAIRS REFERENCE(S):          BCC2017/2099054

MEMBER:Frank Russo

DATE:26 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 26 March 2020 at 5:06pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – enrolment in a registered course ceased – limited academic progress – applicant sustained injuries – limited efforts to re-enrol – applicant departed Australia – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 8 August 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(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study from 10 November 2016 to the date of the delegate’s decision on 8 August 2017. 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. The applicant is a 23-year-old national of Nepal.

4. A hearing was notified for 22 August 2019, but at the request of the applicant’s registered migration agent the hearing date was postponed.

5. The applicant appeared before the Tribunal on 17 September 2019 to give evidence and present arguments.

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

7. 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

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

9. In addition to his application form and a copies of the delegate’s decision and a Client Service Information document from the Department, the applicant provided the Tribunal with the following additional documents:

   a.Statutory declaration from the applicant, dated 16 August 2019;

   b.Submission from the applicant’s agent, dated 10 September 2019;

   c.Medical certificate from Dr Dip Chand, dated 3 March 2017;

   d.Academic Transcript issued by Griffith College in relation to the Diploma of Information Technology, dated 24 September 2019;

   e.Statement of Attainment issued by Australian Harbour International College (AHIC) for partial completion of the Diploma of Information Technology Networking; and

   f.Emergency Department Clinical Record, issued by Prince Charles Hospital on 23 February 2017.

10. The Tribunal has read and had regard to these documents in making its decision. The Tribunal also notes and has regard to the documents contained within the Tribunal file and on the Department’s file.

    Did the applicant comply with Condition 8202?

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

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

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

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

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

13. The applicant gave evidence at the hearing that he first arrived in Australia in October 2015. His plans at the time were to complete a Diploma of Information Technology at QIBT (which changed its name to Griffith College) in Brisbane and then a Bachelor of Information Technology at Griffith University.

14. The applicant told the Tribunal that he did well in the Diploma of Information Technology, but it was tough for him as the education system in Australia was new to him. He stated that he nevertheless tried hard in his studies. He told the Tribunal that he thought he could take a summer break from his course at the end of 2016. The applicant stated that he also had an accident where he fell from some stairs in early 2017, which he said caused multiple fractures. He told the Tribunal that he contacted Griffith College about this, and was told that he could take a semester off. He stated that his uncle was living in Sydney and he therefore tried to obtain enrolment with a different college in Sydney. He stated that he tried to obtain a release letter from Griffith University, but he was unable to obtain one, and instead the University issued him with a cancellation letter and backdated his course cancellation to November 2016.

15. The applicant stated at the hearing that he accepts he was not enrolled in a course of study from 10 November 2016 until the delegate’s decision on 8 August 2017.

16. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. 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 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 and advised that he may be granted time to comment on or respond to the information if needed.

17. The applicant chose to respond to the PRISMS enrolment record at the hearing. According to this record the applicant has been enrolled in the following courses:

    a.Diploma of Information Technology, starting on 26 October 2015 and ending on 11 June 2016, which was varied on 8 July 2016 with the note ‘Extension of CoE created’;

    b.Diploma of Information Technology with a start date of 27 June 2016 and an end date of 8 October 2016, which was cancelled on 10 November 2016 with the stated reason being ‘Student notifies cessation of studies’;

    c.Bachelor of Information Technology with a start date of 25 July 2016, which was cancelled on 7 September 2016 for non-commencement of studies; and

    d.Diploma of Information Technology Networking, with a start date of 21 August 2017 and an end date of 19 August 2018, which is recorded as finished.

18. The applicant stated that he was surprised that he had been enrolled in the Bachelor of Information Technology as he did not remember ever having been enrolled in it. He stated that his agent had organised his first enrolment. He stated that his agent had told him that his course of study was a Diploma of Information Technology, which would be followed by a Bachelor degree, but he had to first complete the Diploma course to get into the Bachelor degree. The applicant confirmed that he has had three enrolments for a Diploma of Information Technology, the third of which was with AHIC. He stated that in studying this course he had to start again as he was unable to get any credit for the units he had completed at QIBT. He stated that he has one subject left to complete the Diploma of Information Technology Networking.

19. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 10 November 2016 to the date of the delegate’s decision on 8 August 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

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

    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

21. The applicant told the Tribunal that his reasons for travelling to Australia were to gain a tertiary education. He stated that he was enrolled in a Diploma of Information Technology at QIBT/Griffith College, which was to articulate to a Bachelor of Information Technology at Griffith University. On the applicant’s evidence he was doing well with the Diploma of Information Technology, but also found it difficult due to the new environment. He stated that he had to use programs such as Turnitin, which was new to him. He said that he was doing pretty well after learning how to use it.

22. The applicant told the Tribunal that he commenced the Diploma of Information Technology at QIBT in October 2015 and attended until November 2016. He stated that when his CoE was cancelled he had just one subject left to complete and that he had passed all of his other subjects.

23. The applicant gave evidence that following the delegate’s decision to cancel his visa he was enrolled in the Diploma of Information Technology Networking at AHIC from August 2017. He stated that he attended AHIC for two to three semesters. He told the Tribunal that he went to AHIC just to be there and that it was the same material as the course at QIBT. He said he expected the course to be at the same level as the course at QIBT but was disappointed with it.

24. The applicant gave evidence that if his visa is not cancelled he wants to obtain a Bachelor degree in Australia and then return to his home country to do something there. He stated that if Griffith University gives him a chance he will complete his one subject there.

25. The Tribunal questioned the applicant as to whether he had been in contact with Griffith University in relation to whether he could complete the one outstanding unit in the Diploma of Information Technology. The applicant responded that his agents did not suggest to him that he do that.

26. The Tribunal also questioned the applicant about whether he had any records of results from QIBT and AHIC. He stated that he couldn’t get into Griffith College’s portal to access his results. When questioned whether he had asked Griffith College for a copy of his results, he stated that he hadn’t because he started the Diploma of Information technology again at AHIC. The Tribunal questioned the applicant about whether he had tried to enrol in any other courses after enrolling at AHIC. He gave evidence that he tried to enrol in various colleges, including colleges in Darwin, but he was told by his agent that by doing so he could risk losing the money he pays in fees if he is not able to complete his qualification. He stated that he attempted to obtain enrolments through his agents, however they all said the same things to him—that he would need to pay for courses in full, and they advised him not to study until he received an outcome from the Tribunal. He stated that if the Tribunal could grant him an extension of two weeks he would obtain a current CoE for a course.

27. Having considered the applicant’s evidence, there is nothing to suggest that the applicant arrived in Australia initially for a purpose other than his tertiary studies. The Tribunal accepts that the applicant’s evidence that his reason for travel to Australia is to study. There is insufficient evidence before the Tribunal to indicate any other purposes for the applicant remaining in Australia. The Tribunal notes that the applicant enrolled in a Diploma of Information Technology Networking after the delegate’s decision to cancel his visa, and completed a number of units towards completion of this qualification despite not obtaining the qualification, which further supports his claims as to his purpose for remaining in Australia.

28. The Tribunal notes that on 4 March 2020 the Department contacted the Tribunal to advise that the applicant had departed Australia on 26 February 2020. This is confirmed by the applicant’s movement record. On 6 March 2020 the Tribunal wrote to the applicant through his registered migration agent to indicate that he had departed Australia on 26 February 2020 without holding a return bridging visa. The Tribunal enquired as to whether the applicant intended to withdraw his application, however as at the date of this decision no response has been received. The Tribunal does not have regard to the applicant’s departure from Australia in making any findings about his purpose for his travel to and stay in Australia as his departure could be for a number of reasons.

29. Overall the Tribunal gives this matter some weight against cancelling the visa.

    The extent of compliance with visa conditions

30. The applicant was not enrolled in a course of study from 10 November 2016 to 8 August 2017, when the delegate made her decision, a period of almost 9 months. The Tribunal considers this to be a significant period of breach.

31. The Tribunal notes that on the applicant’s evidence he intended to obtain a letter of release from Griffith College and therefore contacted the college, but instead his enrolment was cancelled. The Tribunal takes into account the applicant’s evidence that he had intended to enrol in a course in Sydney so he could be closer to his relatives, which was the reason why he requested a letter of release from Griffith College.

32. The applicant told the Tribunal that he has complied with all other conditions of his visas. There is insufficient evidence before the Tribunal of other breaches by the applicant of his visa conditions. Accordingly, I give this some weight against cancelling the visa.

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

33. When asked about the hardship which may be caused by the cancellation of his visa, he stated that it would be really tough for him and that everyone wants to go to a big university. He stated that at the time of the cancellation he was 18 or 19 years old and ‘got stuck making stupid mistakes’. He stated that he wants to complete his degree, and the inability to do so would be a genuine hardship for him.

34. In addition the applicant stated that there would be hardship for his parents as they paid for all of his fees and sent him money to finance his stay in Australia. He stated that if he goes back to Nepal without a degree it will be very hard for his parents. The Tribunal accepts that the applicant would encounter some hardship if the visa is cancelled and he is unable to complete his Diploma in Information Technology, which would then mean that he would be unable to complete a Bachelor of Information Technology, which was his purpose for arriving in Australia. The Tribunal gives this some weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose. Are there any extenuating circumstances beyond the visa holder’s control that led to the grounds existing?

35. As noted above, the applicant was enrolled in a Bachelor of Information Technology at QIBT/Griffith College from 26 October 2015. His course was due to end on 11 June 2016. His CoE was then extended to allow him a further period from 27 June 2016 to 8 October 2016 to allow him to complete his course. However, according to his PRISMS record, the applicant’s second enrolment in this course was cancelled on 10 November 2016 due to the following reason: ‘Student notifies cessation of studies’.

36. The applicant initially stated that the reason his CoE was cancelled by Griffith College on 10 November 2016 was because he intended to move from Brisbane to Sydney, where his uncle lived. He stated that he was unable to get a release letter from Griffith College and the college instead sent him a cancellation letter. He stated that he never contacted the college to say that he was ceasing his studies. He stated that when his CoE was cancelled he had only one subject to complete before being awarded the Diploma of Information Technology. Following the hearing, the applicant provided the Tribunal with a copy of an Academic Transcript from Griffith College for the Diploma of Information Technology, dated 24 September 2019. This transcript confirms the applicant’s claim that he had only one unit left to complete. According to the transcript, to be awarded the qualification a student must complete 80 credit points. He had completed 7 units, each of 10 credit points. While he had failed three subjects, he repeated two of these and completed them successfully, with only the unit Introduction to Information Systems left to complete. The applicant gave evidence that he studied for the entire time from October 2015 until his CoE was cancelled in November 2016.

37. The Tribunal questioned the applicant as to why he did not complete the one unit remaining for the Diploma of Information Technology. The applicant stated that his agent did not suggest to him contacting Griffith College, but that after the hearing he would get in contact with the college.

38. When questioned further about why his enrolment was cancelled in November 2016, the applicant stated that it was his fault as he wanted to take a summer break, when he was meant to undertake a semester of study over the summer of 2016-17. When questioned about the dates of the summer break, the applicant told the Tribunal that it was from the end of October 2016 to the start of February 2017. He stated that he should have contacted the college about his intention to take a summer break, however he changed addresses and forgot to tell the college. He stated he also had a fall in 2017, as a result of which he received multiple fractures. He stated that he skipped a stair on a staircase and fell. He stated that he spoke to the college about the fall, and the college told him that he could submit a medical report and then he could complete his one outstanding subject.

39. The Tribunal questioned the applicant as to when this fall occurred, to which he responded that he was not good with dates, but it was at the end of January or the start of February 2017. The applicant provided the Tribunal with a medical report from Dr Dip Chand, dated 3 March 2017, indicating that that he had examined the applicant that day and the applicant was suffering medical conditions including right forehead laceration requiring sutures, right scaphoid fracture, right avulsed cuboid fracture, right proximal fracture of the 5^th toe, and that he was unfit for university from 3 March 2017 to 30 April 2017.

40. Following the hearing the Tribunal also submitted a report from the Emergency Department of Prince Charles Hospital, dated 23 February 2017, which indicated that he had fallen down seven stairs and received a laceration to his right eye, swelling of his right ankle, and deformity and pain in his right ankle, and that he was unable to mobilise since the accident, which had occurred that morning.

41. The applicant claims that he was granted a term break by the college as a result of these medical conditions, but despite agreeing to this, the college cancelled his CoE. In his statutory declaration the applicant states as follows:

    While studying at Griffith College I met with an accident and following the accident I requested Griffith College for a break.

    My break was approved by the college. However. I was not able to continue studies from the next available term because of the effects of the accident. I request the College to allow me to continue study a single unit in the term but my application was refused by the College.

    I notified the college about my medical condition and inability to attend the college. The college was aware about my medical condition and advised me that I will be allowed to continue studies from the next available term.

    Once I was refused for the enrolment I tried several colleges for enrolment. Every college I contacted ask me to provide a release letter from Griffith College.

    I requested Griffith College several times for the release letter, my request was refused by the college.

    I came to Australia in a very young age. I was never away from my family before coming to Australia. After the accident I feel lonely and wanted to move to Sydney to live close to my maternal uncle, for support and also wish to study in Sydney.

1. The Tribunal notes that the applicant’s claims made in his statutory declaration do not make reference to his desire to take a summer break instead of enrolling in the third semester of 2016.

2. The Tribunal questioned the applicant as to whether he had any written communications with Griffith College about the circumstances which resulted in the cancellation of his enrolment. He stated that he had talked to the college by telephone and did not have any correspondence.

3. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on the Department’s file a copy of an email from Griffith College dated 9 November 2016. The Tribunal read out the email, which related to his failure to re-enrol in Semester 3 of 2016. The Tribunal raised concerns with the applicant that this may indicate that the circumstances which resulted in the cancellation of his enrolment occurred as early as November 2016, rather than in early 2017 as he claimed in his evidence. 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 this email and advised that he may be granted time to comment on or respond to the information if needed. The applicant chose to respond to the email at the hearing.

4. The email, which is headed ‘Griffith College Failure to Reenrol – semester 3, 2016’ states as follows:

   Please be advised that your enrolment at Griffith College has been cancelled as you failed to enrol in your program’s scheduled courses for Semester 3, 2016.

   As you are an International Student, Griffith College is required to notify the Secretary of the Department of Education about the change to your enrolment status. This action automatically alerts the Department of Immigration and Border Protection and this may affect your Student Visa status. Therefore you are encouraged to make urgent contact with the Department of Immigration and Border Protection.

   Should you wish to return to your studies at Griffith College in the future, you will be required to complete an Application Form and submit this to Griffith College prior to the commencement of the semester to which you wish to return. Application forms can be found at Griffith College reception or by selecting the ‘Apply Now’ option on our website.

5. The applicant stated that at that point (November 2016) he did not check his emails as he had lost his phone. He conceded that this aspect of the circumstances was his fault. He told the Tribunal that he should have been more responsible at the time and that he now realises the implications of what he has done. He stated that when he arrived in Australia at age 18 or 19 he was ‘brainwashed by the environment’, and when he tried to fix the problem that had been created it was too late to fix it. The applicant stated that he got confused about his summer break and the cancellation of his enrolment was backdated by Griffith College to November 2016. He stated that he was confused during that period. He stated that his only priority at the time was studying, but it was a time when he was confused about his subjects and questioned whether he had made the right choice in studying Information Technology. He stated that he did not have someone to guide him. He also stated that he admits he made a mistake at the time.

6. The Tribunal questioned the applicant about when he found out his enrolment had been cancelled, to which he responded that it when he moved to Sydney and tried to get enrolled in another college. He stated that his agent had told him that his visa had already been cancelled. When asked about when he moved to Sydney, he initially told the Tribunal that he moved from Brisbane to Sydney in April 2017, but then stated it was around April to May 2017.

7. The applicant gave evidence that he enrolled in the Diploma of Information Technology Networking in August 2017, after the delegate’s decision to cancel the visa. He provided a copy of an academic transcript from AHIC, which indicates he has completed 9 units for this course, but has not completed all of the requirements for the award of the course. The transcript does not state how many units must be completed in total for the award of the qualification. The applicant also gave evidence that he was not happy with the quality of the education at AHIC and that he looked to enrol elsewhere. He stated that he looked at colleges in Darwin, but was told by his agent that if he enrolled there and received an unfavourable Tribunal decision, he could lose his money.

8. In considering the applicant’s circumstances as a whole, the Tribunal finds that the primary circumstances which resulted in the cancellation of the applicant’s visa were his failure to re-enrol in Semester 3 of 2016 in November 2016. As noted above, the applicant was sent an email from Griffith College on 9 November 2016 alerting him to his failure to re-enrol in semester 3 of 2016 and the cancellation of his enrolment at the college.

9. The applicant gave as an explanation for his failure to re-enrol in this semester his belief that he could take a summer break. The applicant did not provide any evidence for such an understanding or any documents which indicated that he had applied for a semester off. The Tribunal notes the applicant had been enrolled at Griffith College since 26 October 2015 and therefore had over a year to come to terms with the requirement of his course prior to the cancellation of his enrolment.

10. The applicant gave evidence that he did not receive the email of 9 November 2016 from Griffith College because he had lost his phone at the time and he had changed addresses and not notified Griffith College. The Tribunal does not find these to be reasonable excuses for the applicant’s failure to re-enrol in his course in November 2016. At the time the applicant held a Student visa which was granted to him for the purpose of completing his proposed studies. It was the applicant’s responsibility to ensure he complied with the conditions of his visa, including the requirement to maintain enrolment. The Tribunal considers it was also the applicant’s responsibility to maintain appropriate communication with his education provider, which includes checking correspondence received from the college and informing the college of any changes to his contact details. The Tribunal does not accept the applicant’s loss of his phone as a reasonable excuse, given the applicant should have been aware of his course requirements and would also have had other means of communication with the college.

11. The applicant also explained that he was young at the time, that he was 18 or 19, and that he had no-one to guide him. He accepts that he also made some mistakes. The applicant was born in December 1996 and was therefore 19 at the time his enrolment was cancelled by Griffith College in November 2016. While the Tribunal accepts the applicant was relatively young, the Tribunal does not accept that he had no guidance on what to do to fix the cancellation of his enrolment. The email from Griffith College dated 9 November 2016 clearly states that the applicant should contact the Department of Immigration and Border Protection and also clearly advised of the form he should submit if he wished to return to Griffith College. Although the applicant gave evidence that he spoke to Griffith College in relation to his injury in February 2017 and his proposal to study a further subject at the college, there is no documentary evidence that the applicant took any steps to re-enrol with Griffith College. The Tribunal considers that if the applicant had taken the appropriate steps to continue his enrolment with Griffith College, there would be documentary evidence to support this, such as a completed application form. The Tribunal notes that according to his PRISMS enrolment record, the applicant’s enrolment was cancelled on 10 November 2016 and the Tribunal finds the applicant’s failure to re-enrol in November 2016 to be the primary circumstance which resulted in the cancellation of his enrolment.

12. The Tribunal accepts that the applicant had an accident on 23 February 2017 and accepts the medical report of Dr Chand, which indicates that the applicant was not fit for university studies from 3 March 2017 to 30 April 2017. The Tribunal therefore accepts that the applicant was not fit for university from the date of the accident on 23 February 2017 until 30 April 2017. The Tribunal however notes that this accident occurred in late February 2017, over 3 months after the applicant’s enrolment in the Diploma of Information Technology was cancelled.

13. While the applicant stated that he discussed enrolling in one unit with Griffith College, he states that this request was refused. He also gave evidence that he contacted Griffith University after his accident, which the Tribunal notes occurred in the last week of February 2017. The Tribunal considers that if the applicant had intended to enrol in the first semester of 2017 it is likely that he would have been in contact with Griffith College prior to 23 February 2017 to enrol. There is no evidence of such contact. There is also no evidence of any correspondence from the applicant to Griffith College about an application for re-enrolment following his accident.

14. The email from Griffith University dated 9 November 2016 indicates that the applicant’s enrolment was cancelled in November 2016, and not after he failed to enrol in semester 1 of 2017 following his accident and then backdated to November 2016, as he claimed at the hearing. The Tribunal therefore does not accept the applicant’s claims that he contacted Griffith University to complete a unit following the cancellation of his enrolment.

15. The Tribunal accepts the applicant’s reasons for wishing to relocate to Sydney following his accident in February 2017, namely because he was feeling lonely in Brisbane and wished to relocate to Sydney, where he had relatives. The applicant claims that when he moved to Sydney he attempted to enrol in other courses, and that he even considered relocating to Darwin to attend a college. The applicant provided no supporting evidence for this claim and in his evidence indicated that he relied upon his agents to find courses for him. However, the Tribunal notes that the applicant was enrolled in the Diploma of Information Technology Networking at AHIC after the delegate’s decision, from 21 August 2017 to August 2018 and completed 9 units of this course, despite not being awarded the qualification. The Tribunal gives this a little weight in considering this factor as a whole.

16. Overall the Tribunal considers that the primary circumstances which resulted in the cancellation of the visa were not beyond the control of the applicant. The documentary evidence available to the Tribunal indicates that the applicant’s enrolment was cancelled on 10 November 2016 due to his failure to re-enrol in his course. While the Tribunal has given some weight to the applicant’s accident on 23 February 2017 as a reason why he was unfit for study from that date until 30 April 2017, the Tribunal does not accept the applicant’s claims that he attempted to re-enrol at Griffith College and his request was refused. No documentary evidence has been provided of such claims. The applicant’s claim that the cancellation of his enrolment was then backdated by Griffith College when he attempted to ask for a release letter is not supported by the documentary evidence, in particular the email sent by Griffith College to the applicant on 9 November 2016. Having regard to the circumstances as a whole the Tribunal gives this factor some weight in favour of cancelling the visa.

    Past and present behaviour of the visa holder towards the Department

17. The applicant gave evidence that he was not aware of any issues in terms of his past or present behaviour towards the Department. There is no indication of any issues contained on the files. The Tribunal notes the applicant did not respond to the Department’s Notice of Intention to Consider Cancellation of the Visa. The applicant told the Tribunal that he only received the NOICC after the delegate’s decision and that he did not realise he had to notify the Department of a change of address. The Tribunal gives this only little weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

18. The applicant stated at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

    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

19. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189, however he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. 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 applicant confirmed at hearing that he understood these mandatory legal consequences and he did not have any comments to make in relation to them. The Tribunal gives this only little weight against cancelling the 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

20. There is nothing to suggest, and the applicant does not claim, that Australia has obligations under relevant international agreements any international obligations, including non-refoulement and best interests of the children, would be breached as a result of the cancellation. On the evidence before it, the Tribunal weighs this factor neither in favour nor against cancelling the visa

    Any other relevant matters

21. The Tribunal asked the applicant whether there are any other relevant matters which the Tribunal should take into account. He stated that there were no other relevant matters. The Tribunal weights this neither in favour nor against cancelling the visa.

    Considering matters as a whole

22. Considering the above matters as a whole, the Tribunal concludes that the visa should be cancelled. In particular the Tribunal places weight on the circumstances in which the ground for cancellation arose. As noted above, the Tribunal considers the primary reason for the applicant’s enrolment being cancelled was within his control. The applicant did not provide compelling reasons as to why his enrolment was cancelled in November 2016 and based on the documentary evidence available, the Tribunal does not accept the applicant’s claim that his enrolment was not cancelled until after his accident in February 2017 and backdated to November 2016. Having considered each matter, the Tribunal considers that overall they provide insufficient weight against cancelling the visa.

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

    DECISION

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

    Frank Russo
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

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

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

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

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

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

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

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

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

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

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

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

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