Panchal (Migration)

[2024] AATA 3089

Panchal (Migration) [2024] AATA 3089 (13 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rakshain Jagdish Panchal

REPRESENTATIVE:  Mr Ajay Bansal (MARN: 1569359)

CASE NUMBER:  2307544

HOME AFFAIRS REFERENCE(S):          BCC2022/5283061

MEMBER:Christine Kannis

DATE:13 August 2024

PLACE OF DECISION:  Perth

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

Statement made on 13 August 2024 at 7:32am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – breached condition 8202 – applicant had not been enrolled in a registered course of study – symptoms of Allergic Asthma – no extenuating or compassionate circumstances in this case – no compelling need to for the applicant to remain in Australia – breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed

LEGISLATION 
Education Services for Overseas Students Act 2000 (ESOS Act), s 19
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), Schedule 8

CASES

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 May 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

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  on 29 July 2024 to give evidence and present arguments.

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

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

   Did the applicant comply with Condition 8202?

8. On 25 October 2018, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

9. 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).

10. 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.

11. In the present case, the applicant’s visa was cancelled on the basis that he was not enrolled in a full-time registered course.

12. 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.

13. The information from PRISMS shows the applicant was not enrolled in a registered course from 4 November 2021 to 28 March 2023.

14. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 4 November 2021 to 28 March 2023 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

15. 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

16. 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 his representative and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

17. On 20 March 2023 and 6 April 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 4 November 2021 and had therefore failed to comply with condition 8202(2)(a) of his visa.

18. On 19 April 2023, the applicant responded to the NOICC via his migration agent and provided the following information:

    • The applicant was not able to comply with condition 8202 due to compelling reasons and events beyond his control.
    • The applicant had medical issues which resulted in him travelling to India where he spent significant time in treatment. He travelled to India from 17 January 2022 to 16 May 2022. He had requested a deferral from his previous education provider before he left for India and had the impression it was granted.
    • After he returned from India he was not 100% so he requested more time from the college but was told to pay his fees that were due. He started organising payment  and was not aware his CoE had already been cancelled.
    • His medical conditions worsened between May 2022 and January 2023 so he was not able to concentrate on his education. He travelled to India for treatment from 26 January 2023 to 2 March 2023. He then decided to start fresh and advised his previous education provider he was pursuing a career as a chef.
    • The applicant was unaware his CoE from the previous education provider was cancelled until he returned from India on 2 March 2023 when he acquired another CoE from his current education provider to study Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and Graduate Diploma of Management.
    • Cancellation will have extreme consequences for the applicant psychologically. After spending years here he will return home without any qualification and it will be matter of shame for him. He will not be able to develop his own career pathway. He has suffered in recent years with his medical condition and would be devastated to return have nothing to show for his effort.  
    • The applicant wants to complete a course in Australia before he returns to India.  He did research and took suggestions from family and friends to decide on the career to pursue. With his current health the applicant may not be able to work for his entire adulthood so he wants to work while he can and establish a business. He was inspired by hospitality in Australia and plans to introduce such cuisines in his own country. Therefore, he decided to enrol for Certificate III and IV in Hospitality and Diploma and Graduate Diploma course in Management field.
    • If the applicant is permitted to continue studying this will save him further hardships and help fulfil his dream to have a fulfilling career in India. He and his family have gone through hardships during the last 2 years and cancellation will put further hardship on them.

19. At the time of responding to the NOICC the applicant provided the following documents:

    ·CoE for Certificate III in Commercial Cookery created on 29 March 2023;

    ·CoE for Certificate IV in Kitchen Management created on 29 March 2023;

    ·CoE for Diploma of Hospitality Management created on 29 March 2023;

    ·CoE for Graduate Diploma in Management created on 29 March 2023;

    ·Evidence of the applicant’s travel to India in 2022 and 2023;

    ·Medical certificate dated 3 April 2023 from Dr Vismay Thaker certifying the applicant is suffering from allergic asthma and undergoing treatment from 25 January 2022 to 12 May 2022 and from 28 January 2023 to 1 March 2023.  

    ·Medical certificate (undated) from Dr Mital J Shah certifying the applicant was diagnosed with second degree asthma on 30 January 2023 and was advised to seek urgent treatment and was in treatment from 30 January 2023 to 2 February 2023 and was kept under observation with advice no traveling until 1 March 2023.

    Evidence provided prior to the hearing

20. Applicant’s written submission (his submission) dated 26 July 2024 which provided evidence not materially different to information provided in the NOICC response and the following additional evidence:

    • He is now enrolled in a Certificate III in Commercial Cookery and a Certificate IV in Kitchen Management and a Diploma of Hospitality Management.
    • He completed two semesters of a Diploma of Engineering but was not able to do good in his academics.
    • He was very new in the country and did not know anyone and felt alone.
    • He also received news of his father’s health which triggered his condition. He felt homesick and could not concentrate on his studies and failed his exams.
    • Therefore, in April 2021 he enrolled in easier courses of Certificate IV and Diploma of Building and Construction and completed 6 months study. During that time COVID there were COVID  lockdowns and restrictions. His family’s finances were affected and they were unable to financially support him. His job was shut down and he was unable to work which caused financial hardship to pay his fees. Due to all these circumstances, he was in bad shape mentally, psychologically and financially. The classes were also online and it was difficult to cope up with everything that was happening.
    • Then he had his health challenges and developed symptoms of Allergic Asthma and   travelled to India on 17 January 2022 for treatment. He requested the college defer his courses and returned to Australia on 16 May 2022.
    • After that he tried paying his college fees online but the payment did not go through. He called the college and they informed him his CoE had been cancelled. They told him they had already emailed him about the CoE cancellation but he did not receive  any email from the college. On further enquiring it came out that they had sent it to a wrong email address.
    • During that time he had also recently broken up his 6 year relationship with his girlfriend and was going through a tough time. He was suffering emotionally, mentally and psychologically and developed symptoms of depressive anxiety and time just passed.
    • Later he again started experiencing the Allergic Asthma and travelled to India for further treatment on 26 January 2023 and returned to Australia on 2 March 2023.
    • Shortly after arriving in Australia, he received a NOICC.
    • He wanted to start fresh and decided to change his course of study as he was not able to do well in his previous courses. He enrolled for commercial cookery, hospitality management and graduate diploma of management courses in March 2023 and started classes however was not able to continue when his visa was cancelled on 22 May 2023.
    • He has again enrolled in a Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and Diploma of Hospitality Management and classes have started.
    • His primary purpose for traveling to Australia was to pursue higher education and acquire a Bachelor's degree. He aimed to gain knowledge and skills in engineering but failed constantly due to all the above-mentioned circumstances.
    • If his visa is cancelled it is likely that he will not be able to achieve any educational outcome in Australia.
    • The cancellation of the visa will cause problems and stress to his family who have high hopes for him and their hard-earned money spent on his Australian study and living will be wasted.
    • If his visa is cancelled, it will directly impact his education and career prospects. Returning without a qualification would hinder his ability to pursue further studies, given the competition for admission and lack of international standard education.
    • Given that he may not be able to secure employment or start a business without qualifications he will not be able to have credit or benefit of education in India. As the education system in India is different from Australia and part-studies may not be recognized as there is no credit given for unfinished studies.
    • The circumstances leading to non-compliance were largely beyond his control. He faced unexpected personal challenges, health challenges and academic difficulties that affected his ability to maintain a full-time course load.
    • He has decided to change to commercial cookery and hospitality management and believes this course aligns better with his career goals and will provide him with a more suitable academic environment. 
    • He aims to establish his own restaurant business in India.

21. Evidence of travel, Medical certificates and CoEs previously provided to the Department were again provided. In addition a CoE for Diploma of Hospitality Management created on 25 July 2024 was provided.

    Evidence provided 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 Foundation Studies Accelerated which he finished on 30 June 2019;

    b.He was enrolled in a Bachelor of Engineering (Honours) (Civil) which was cancelled on 10 July 2019 due to non-commencement of studies;

    c.He was enrolled in a Bachelor of Engineering (Honours) (Civil) which was cancelled on 18 March 2021 due to non-commencement of studies;

    d.He was enrolled in a Diploma of Engineering (Honours) (Civil) which was cancelled on 7 May 2021 due to Unsatisfactory course progress;

    e.He was enrolled in Certificate IV Building and Construction which was cancelled on 4 November 2021 due to Unsatisfactory course progress;

    f.He was enrolled in a Diploma of Building and Construction (Building) which was cancelled on 4 November 2021 due to non-commencement of studies;

    g.He was enrolled in a Certificate III in Commercial Cookery which was cancelled.

    h.He was enrolled in a Certificate IV in Kitchen Management which was cancelled on 31 May 2023 due to non-commencement of studies;

    i.He was enrolled in a Diploma of Hospitality Management which was cancelled on 31 May 2023 due to non-commencement of studies; and

    j.He was enrolled in a Graduate Diploma of Management (Learning) which was cancelled on 31 May 2023 due to non-commencement of studies; 

    k.He is enrolled in a Certificate III in Commercial Cookery and the CoE was created on 25 July 2024;

    l.He is enrolled in a Certificate IV in Kitchen Management and the CoE was created on 25 July 2024; and

    m.He is enrolled in a Diploma of Hospitality Management and the CoE was created on 25 July 2024.

23. The Tribunal explained to the applicant that this information was relevant because it indicates that from 4 November 2021 to 28 March 2023 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.

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. In response the applicant said he agreed with the PRISMS record.

25. The Tribunal asked the applicant about the statement in the NOICC response that he requested a deferral of his study before he left for India on 17 January 2022. In response the applicant told the Tribunal that he telephoned the education provider on 22 December 2021 and requested a deferral. He said he was advised that the education provider would contact him but he did not hear from them before he departed Australia. In response to the Tribunal asking whether he was required to complete a written request for a deferral he said he did not receive a response from the education provider after his phone call on 22 December 2021. In response to the Tribunal asking whether he followed up the request for a deferral of his studies with the education provider ,he initially said he did not and that was his mistake however he then said he emailed the education provider twice to follow up but did not receive a response. These emails have not been provided to the Tribunal.

26. The applicant told the Tribunal that he wasn’t aware that his CoE had been cancelled until the end of July 2022, two months after his return to Australia. In his pre-hearing written submission he stated that the college told him they emailed him about the cancellation but he did not receive the email because the college sent it to a wrong email address. No evidence to substantiate this contention was provided.

27. The Tribunal noted that the NOICC response stated that the applicant was not aware of the cancellation until March 2023, This is inconsistent with his oral evidence to the Tribunal that he became aware of the cancellation in July 2022.  Accordingly, the Tribunal put to the applicant that he would have known from at least July 2022 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. He did not dispute that he was aware of his non-enrolment from July 2022. In response to the Tribunal asking the applicant whether he contacted the Department about his visa status in July 2022 when he became area that he had not been enrolled in a course since 4 November 2021, the applicant said at that time he was in a mess and did not know what to do. He said his long term relationship had ended and he was not able to focus on his study due to his medical condition. He said at that time he was taking 4 to 5 medications per day. However the applicant also told the Tribunal that his health did not prevent him studying when he returned to Australia in May 2022. He said his health worsened in September 2022 however the borders did not open until November 2022 and therefore he was not able to travel to India until after that time.

1. In response to the Tribunal asking the applicant whether he contacted a migration agent for assistance when he became aware that he had not been enrolled in a course since 4 November 2021, the applicant said he did not seek assistance because his medical condition did not allow him to focus on his studies. In response to the Tribunal asking the applicant whether he sought and/or received treatment for his medical condition in Australia, he said he saw a doctor in Australia once only and was otherwise treated by his family doctor in India . He said his doctor in India treated him prior to his return to India in January 2023 by advising him to go out in the fresh air and to eat fresh vegetables.

2. The Tribunal asked the applicant about the treatment he received for his condition in India. He said he used 3 or 4 cylinders of oxygen and was also on medication.

3. The Tribunal asked the applicant about the reference in his submission to his father’s health triggering his own condition in 2019. He said his father suffered from kidney failure in 2019 and underwent a successful kidney transplant in February 2021.

4. The Tribunal asked the applicant about the reference in his submission to his family being unable to support him financially due to COVID and the financial hardship he suffered when his job was closed down due to COVID. He told the Tribunal that he worked 17 to 18 hours per week as a kitchenhand in a local restaurant until March 2021 and from April 2021 until the present time he has worked 7 to 8 hours per week at McDonald’s, except for periods he was in India. In response to the Tribunal asking how he has financially supported himself from April 2021 until the present time on  employment of  only 7 to 8 hours per week, the applicant said he received financial support from friends and after November 2021 he has also received monthly payments from his family.

5. The Tribunal asked the applicant about the reference in his submission to the end of his 6 year relationship with his girlfriend and his statement that he was suffering  emotionally, mentally and psychologically. In response he said the relationship ended in June 2021. The Tribunal asked the applicant whether he sought medical assistance for his mental health in Australia. He said he had two online consultations and was advised to distract his mind and keep happy doing the things he liked.

6. The Tribunal asked the applicant about the reference in his submission to his academic difficulty with studying a Diploma of Engineering, Certificate IV and Diploma of Building and Construction. He said because of the challenges he faced due to his father’s health condition, his own health condition, the breakdown of his relationship with his girlfriend and his homesickness, he was not able to focus on his studies.

7. Noting that the applicant was not enrolled in any study throughout the whole of 2022, the Tribunal asked him the reason for staying in Australia and not studying. In response he  referred to the challenges set out in the preceding paragraph and also said he was not ready to return to Civil Engineering studies,  which was his parents’ ambition for him.

8. Noting also that the applicant was able to obtain CoEs within a few days of the Department sending him the NOICC, the Tribunal asked him the reason he obtained the CoEs at that time . He said by the time he received the NOICC, he had convinced his parents that he had not performed well in his previous courses and therefore they were agreeable to his changing his field of study to hospitality.

9. When asked about the purpose of his travel to Australia, the applicant told the Tribunal he came to Australia to pursue a Bachelor’s degree and explore an overseas education system. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said his only ambition is to obtain a cookery qualification.

10. When asked about the hardship that may be caused by cancellation of the visa, the applicant said his future career would be adversely affected and the money his parents have spent would have been wasted and they would not be proud of him.

11. The applicant told the Tribunal that as soon as his application for review was listed for hearing, he obtained CoEs for his current study. The Tribunal notes that the applicant was advised on 25 June 2024 that his application for review had been listed for hearing on 30 July 2024 however the current CoEs were created on 25 July 2024, more than 4 weeks after the advice and 5 days prior to the hearing.

12. 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

13. The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of  1 year 5 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

14. The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said his only ambition is to obtain a cookery qualification. The Tribunal does not consider this constitutes a compelling need.

15. The applicant’s non-engagement in the study for which his visa was granted for an extended period 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

16. The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 4 November 2021 to 28 March 2023. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.

17. The applicant’s non-compliance for a period of 1 year 5 months from cancellation of his enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

18. The Tribunal accepts that the cancellation will be disappointing to him and his family and that it may affect the applicant’s future career in India.

19. The Tribunal gives the hardship that may be caused to the applicant and his family some weight against cancellation.

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

20. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 1 year 5 months prior to the issuing of the NOICC. He told the Tribunal that he was not aware of the cancellation until July 2022 because he was under the impression his request to defer his study had been approved and because the education provider had sent the cancellation advice to an incorrect email address.

21. In relation to the requested deferral of study, the applicant’s evidence was that after he verbally requested a deferral he was not required to make a written request and was not advised that the deferral had or had not been granted. He did not follow up the outcome of his request with the education provider to obtain clarity of the outcome and said he and was under the impression it had been granted because it was based on medical reasons. In the Tribunal’s view it was the applicant’s responsibility to ensure the requested deferral had been approved prior to ceasing study and departing Australia.

22. In relation to the applicant’s claim that the email advising of the cancellation was sent to an incorrect email address, no evidence was provided to substantiate that claim.

23. In relation to the applicant’s claim that his health condition (severe asthma) caused him to cease study in 2021 and not enrol in study after July 2022, the Tribunal accepts the medical evidence that the applicant suffered from asthma and was treated in India from 25 January 2022  to 12 May 2022 and from 30 January 2023 to 1 March 2023. The applicant’s evidence to the Tribunal was that his health did not prevent him from study when he returned to Australia in May 2022 and there was no medical evidence indicating that the applicant’s medical condition caused him to be unfit for study outside of the periods of treatment referred to in the medical certificates.

24. The applicant told the Tribunal that after July 2022 he was aware his enrolment had been cancelled however he did not contact the Department or seek the assistance of a migration agent because he did not know what to do and was not able to focus on his study due to his medical condition and the breakdown of his long term relationship. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa, to notify the Department of changes in their circumstances that affect their visa and remain compliant with visa conditions. In the present case the applicant became aware, at least from July 2022, that he was not compliant with his visa conditions and he did not seek to regulate his visa status. His oral evidence was that his relationship ended more than 12 months prior in June 2021 and that his health condition did not prevent study in May 2022.

25. In his submission and his oral evidence to the Tribunal the applicant referred to suffering mentally due to the challenges in his life. There was no medical evidence regarding the nature or severity of the applicant’s claimed mental health condition. As noted, the Tribunal accepts the medical evidence in relation to the applicant’s asthma diagnosis and treatment. The applicant’s evidence was that apart from periods he was in India, he continued his employment with McDonald’s during the period of non-enrolment and therefore maintained employment during the time he ceased to be enrolled in a registered course. Therefore, despite his physical and claimed mental health conditions, the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder.

26. The applicant told the Tribunal that when he became aware in July 2022 that his enrolment had been cancelled on 4 November 2021, he did not know what to do. He said he was alone in Australia, had no guidance and was homesick. In the Tribunal’s view, if the applicant was old enough to travel to and live in a foreign country and undertake study, he would have sufficient life experience to ensure compliance with his visa conditions.. 

27. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he ceased to be enrolled in a registered course  from 4 November 2021 to 28 March 2023. He referred to suffering health issues however as noted, his evidence was that his health did not prevent him studying from at least May 2022 and he continued to work during the period of non-compliance. There was no medical evidence to substantiate his claim that the challenges in his life caused him to suffer from a mental health condition or that any such condition was so debilitating so as to prevent compliance with his visa conditions including notifying the Department of changes in his circumstances. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

28. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

29. 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

30. 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

31. 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

32. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

33. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

34. 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

35. 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.