Raja (Migration)

[2023] AATA 1221

Raja (Migration) [2023] AATA 1221 (2 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ibrahim Khan Raja

REPRESENTATIVE:  Mr Hussan Ahmad Sura

CASE NUMBER:  2210215

HOME AFFAIRS REFERENCE(S):          BCC2018/4112408

MEMBER:Gabrielle Cullen

DATE:2 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2023 at 11:07am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – enrolment in a registered course cancelled – fraudulent academic transcripts – confirming the dismissal of the review application – non-commencement of studies – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 48, 116, 359, 362, 363
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; Schedule 8, Condition 8202; r 2.12

CASES

Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 19 November 2018 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 under s 116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.

3. The Tribunal received an application for review of the delegate’s decision from the applicant on 23 December 2018. The applicant attached the Department’s Notification of Cancellation under s 116 dated 19 November 2018 and the Decision Record dated 19 November 2018 which indicates that on 29 October 2018 the Department notified and invited the applicant to comment on the intention to consider cancellation of his Subclass 500 Student visa granted on 22 February 2018 on the basis he had not been enrolled in a course of study since 8 March 2018. The applicant did not provide a response.

4. The applicant was invited by the Tribunal on 14 January 2020 to attend a  hearing on 12 February 2020. On 11 February 2020 the applicant’s representative advised that the applicant will not be attending the hearing and for the Tribunal to make a decision on the papers. The applicant’s representative also provided a written submission as to why the visa should not be cancelled on 11 February 2020.

5. On 14 February 2020 the applicant via his representative provided an Offer Letter dated 13 February 2020 for the applicant to study a General English course form 16 March 2020 to 11 September 2020 at Australasia Language College. The agent stated in this email that the applicant wished to complete this course.

6. The Tribunal (differently constituted) found on 10 July 2020 that the applicant was not enrolled in a registered course and that he had not complied with condition 8202, considered the discretionary criteria and affirmed the decision of the Department. The Tribunal (differently constituted)  noted that shortly prior to the scheduled hearing the Tribunal obtained a 'Provider Registration and International Student Management System (PRISMS) record, together with a copy of a Confirmation of Enrolment (COE) for the course referred to in the PRISMS record, namely a Master of Data Science (MDS) at the University of Queensland (UQ), a course due to commence on 23 July 2018 and to finish on 29 November 2019. The Tribunal noted that the COE for this course was issued on 9 February 2018 and cancelled, according to it and other records, on 8 March 2018, a few days before the applicant arrived in Australia on 11 March 2018.

7. In its decision, the Tribunal (differently constituted) referred to correspondence between the department and from the University of Queensland (UQ) which confirmed that the applicant’s enrolment in the Master of Data Science  was cancelled on 8 March 2018. The Tribunal noted that the reason for the cancellation was that the University had discovered that a group of 11 students from Pakistan had submitted fraudulent academic transcripts in the course of the admissions process after their COEs were issued and visas granted to them of which the applicant was one of them. This email goes on to state that UQ immediately cancelled their COEs, informed the students of this and advised them of the need to contact (sic) the Department urgently.

8. On 27 January 2021 the Federal Circuit Court remitted the matter by consent on the basis that the second respondent failed to comply with s 359A(1) of the Migration Act 1958 (Cth) as the Tribunal did not invite the applicant to comment on or respond to particulars of information in an email dated 31 July 2018 from the University of Queensland to the Department that would have been the reason, or a part of the reason, for affirming the decision under review.

9. On 28 February 2022 the applicant was invited via his representative to attend a hearing by video on 4 April 2022. The Tribunal also attempted to contact the applicant using the mobile telephone number on file and was advised the applicant will not be appearing.

10. The applicant dd not appear at the hearing scheduled for 4 April 2022.

11. On 4 April 2022 the Tribunal dismissed the application under s 362B(1A)(b) of the Act as the review applicant did not appear before it to give evidence and present arguments at the time and date of the scheduled hearing. The review applicant was advised that reinstatement of the application could be sought within 14 days of receiving the dismissal statement and that a failure to apply for reinstatement within the 14 day period would result in confirmation of the dismissal decision.

12. On 11 April 2022 the Tribunal was notified by the appropriate form of the appointment of a new representative. 

13. On 20 April 2022 the Tribunal (differently constituted) confirmed the decision to dismiss as the applicant did not apply for re-instatement.

14. On 12 July 2022 the Federal Circuit Court remitted the matter by consent on the basis that the Tribunal had no power to dismiss the application on 4 April 2022 pursuant to s 362B(1A)(b) of the Migration Act 1958 (the Act), or to confirm the dismissal of the review application on 20 April 2022 pursuant to s 362B(1C)(b) of the Act. It noted that on 11 February 2020, the applicant’s representative sent an email to the Tribunal consenting to it deciding the review without the applicant appearing before it. Consequently, the applicant was not entitled to appear before the Tribunal and it had no power to permit him to appear: ss 360(3) and 363A. In those circumstances, the Tribunal exceeded its authority by dismissing the review application for non-appearance pursuant to s 362B(1A)(b) of the Act. It found that the Tribunal’s error was material in the circumstances of this case because it resulted in a failure by the Tribunal to consider the applicant’s claims about why his visa should not be cancelled and denied the applicant a substantive decision on the merits of his review application, which would have occurred had the Tribunal make a decision pursuant to s 360(2)(b).

15. On 15 February 2023 the Tribunal wrote the applicant via his representative the following letter.

    On 11 February 2020, you, via your representative, sent an email to the Tribunal consenting to it deciding the review without you appearing before it at a hearing.

    As it is some time since that indication could you please confirm by 1 March 2023 that you continue to consent to the Tribunal proceeding to a decision on the papers without you appearing before it at a hearing.

    If you wish to withdraw that consent, please indicate and the Tribunal will forthwith invite you to give evidence at a hearing.

16. As at the time of this decision the applicant has not responded.

17. On 9 March 2023 the Tribunal sent the following letter to the applicant via his representative and gave him until 23 March 2022 to comment or respond.

    I am writing on instruction from the Member conducting your review, in relation to the application for review made by you in respect of a decision to cancel your Subclass 500 (Student) visa.

    Non-Disclosure Certificate

    A certificate has been issued by the Delegate under s 376 of the Migration Act 1958 (Cth) (the Act) in relation to CLD2018/38221166, CLD2018/52471489, CLD2018/53770948, CLD2018/54217738 of file number BCC2018/4112408 on the basis that disclosure of the material would be contrary to the public interest.

    The Delegate found s 376 of the Act to apply to CLD2018/52471489 and CLD2018/38221166 on the basis that their release would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would, or be likely to, prejudice the effectiveness of those methods. Additionally, the Delegate found s 376 of the Act to apply to CLD2018/53770948 and CLD2018/54217738 on the basis that their release would disclose or enable a person to ascertain the existence or identity of a confidential source of information.

    The certificate is attached to this correspondence.

    The Tribunal has a discretion under s 376 to disclose the information on the file.

    The Tribunal considers that the certificate contains a valid ground of public interest immunity not to disclose the information.

    You are invited to comment on or make submissions on the validity of the s 376 certificate, and why the material should be released, by 23 March 2023.

    If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 23 March 2023, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 23 March 2023 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.

    Invitation to comment or respond to information

    In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    ·The information pertains to the material contained in the folios covered by the s 376 certificate.

    Release of the material is discretionary.

    The Tribunal will nevertheless provide the ‘gist’ of the adverse information in the documents subject to the s 376 certificate.

    The information is:

    oInformation indicating that a group of students, including yourself, had been discovered to have submitted fraudulent academic transcripts as part of their admissions process and that, as a result, your CoE with University of Queensland (UQ) had been cancelled.

    oDepartment notification assessment and case notes

    oEmail from the Department to the education provider inquiring whether the update to your PRISMS record on 21 August 2018 is correct and requesting confirmation that you are no longer enrolled with the university. The email advises that records available to the Department indicate your CoE was cancelled on 3 March 2018.

    oEmail to the Department confirming that you were not enrolled at the University and that your CoE was cancelled on 8 March 2018. It further advises that you applied to be released to another provider however this request was denied on 27 July 2018 as you were unable to provide an offer from an alternate provider. The email indicates you were advised by UQ of the right to appeal the decision by 24 August 2018 however you did not do so and as such the release refusal was updated on your PRISMS record with an effective date of 25 August 2018. The email further includes contact details provided by you on the withdrawal form submitted to UQ on 19 May 2018.

    This information is relevant to the review because it may lead the Tribunal to find that you have not been enrolled in a registered course since 8 March 2018 and therefore no longer meet the requirements of subclause 8202(2)(a), compliance with which is a condition of the visa you were granted.

    If we rely on this information in making our decision it may lead the Tribunal to affirm the decision of the Department to cancel your student visa.

    ·Information from the Provider Registration and International Student Management System (PRISMS) accessed on 9 March 2023 and emails from the education provider indicates your enrolment was cancelled on 8 March 2018 and that enrolment in the Master of Data Science from 1 July 2018 to 31 March 2020 was cancelled. It indicates you have not been enrolled in a course of study since 8 March 2018.

    This information is relevant to the review because it may lead the Tribunal to find that you have not been enrolled in a registered course since 8 March 2018 and therefore no longer meet the requirements of subclause 8202(2)(a), compliance with which is a condition of the visa you were granted.

    If we rely on this information in making our decision it may lead the Tribunal to affirm the decision of the Department to cancel your student visa.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 23 March 2023. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 23 March 2023, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 23 March 2023 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.

18. On 17 April 2023 the Tribunal wrote a further s.359A letter as follows.

    The particulars of the information are:

    ·Information from the University of Queensland indicating that a group of students, including yourself, had been discovered to have submitted fraudulent academic transcripts as part of their admissions process and that, as a result, your CoE with the University of Queensland was cancelled.

    ·Information that you have not been enrolled in a course of study since 8 March 2018 as your enrolment was cancelled by the University of Queensland due to the submission of fraudulent academic documents.

    This information is relevant to the review because it may lead the Tribunal to find that you have attempted to gain entry to study in Australia by submitting fraudulent academic transcripts. It may lead the Tribunal to find that this factor weighs in favour of the discretion to cancel the visa particularly when considering matters in the Department’s Procedural Instruction ‘General visa cancellation powers’. In particular, it may lead the Tribunal to find that your purpose to travel and stay in Australia was, and is not, to study or as a genuine student, it undermines your claimed degree of hardship that may be caused in being unable to study, is relevant to the to the circumstances in which the ground of cancellation arose and that the circumstances that lead to the cancellation were due to your behaviour in submitting fraudulent documents

    If we rely on this information in making our decision it may lead the Tribunal to affirm the decision of the Department to cancel your student visa.

    You are invited to give comments on or respond to the above information in writing.

19. The applicant was given until 1 May 2023 to comment or respond.

20. As at the date of this decision the applicant has not responded to either of the s. 359A letters.

21. 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

    Hearing

22. On 11 February 2020 the applicant’s representative advised that the applicant will not be attending the hearing and for the Tribunal to make a decision on the papers. As 3 years had passed on 15 February 2023 the Tribunal wrote to the applicant via his representative referring to the request on 11 February 2020 and requesting he confirms by 1 March 2023 that he continues to consent to the Tribunal proceeding to a decision on the papers without him appearing before it at a hearing. As the applicant did not respond by 1 March 2023 and has not responded by the date of this decision it is of the view on the evidence before it that the applicant continues to request for a decision to be made on the papers

23. Further, the Tribunal is of the view the applicant did not provide the information requested in the s.359A letter dated 9 March 2023 within the prescribed period and extension of time within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

    Non-Disclosure Certificate

24. The Tribunal wrote to the applicant advising that there is a s.376 Certificate on the Department’s file which it considered is valid and attached the certificate. It outlined the reason given by the Department for the certificate. It invited the applicant to comment on or make submissions on the validity of the s 376 certificate, and why the material should be released. No response was received

25. It also outlined via the process outlined in s.359A, the information the s.376 covered in general with regard to the information obtained from the applicants’ education provider which led to his enrolment in the Master of Data Science being cancelled on 8 March 2018.

    Condition 8202

26. 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). 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?

27. 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).

28. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).

29. The decision record set out that the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa on 29 October 2018 . The Tribunal is satisfied that the NOICC was validly issued.

30. The delegate found on 19 November 2018 that the applicant had not been enrolled in a registered course of study since 8 March 2018 and proceeded to cancel the visa.

1. As raised with the applicant via the s.359A letter dated 9 March 2023 the applicant’s Provider Registration and International Student Management System (PRISMS) records and University of Queensland correspondence contain information that the applicant had not been enrolled in a registered course of study from 8 March 2018 when his enrolment was cancelled until the date of the delegate’s decision of 19 November 2018. The evidence as outlined in the Department’s decision attached to the application for review indicated he was the holder of a Subclass 500 Student visa granted on 22 February 2018 in which condition 8202 applied.

2. The applicant did not respond to the  NOICC and the Tribunal has considered the submissions from the applicant’s representative from 11 February 2020 and 14 February 2020. The applicant’s representative made the following submission

   The Department cancelled his student visa due to no enrollment in a registered course of the regulation which is not entirely correct.

   The student pays and enroll into their course before arriving in Australia for the first semester. The question of fees enrollment etc. only comes during the second semester. The student had his visa cancelled during the first semester.

   Why….

   ·This is because the applicant sent money to the college for fees

   ·Applies for the visa

   ·Visa was granted

   ·Comes to Australia

   ·Attends the education provided.

   ·The provider says that “you agent has taken the fees”” (withdrawn)

   ·The applicant was unable to pay another 16-17 000

   ·No enrollment

   ·Visa cancelled.

   The most interesting thing is , to give an AGENT refund.

   ·no request for the refund by the student

   ·Visa granted

   ·6 month no release rule breached

   ·Money was given on the request of third party

   ·Knowing that the student has been granted the visa and coming to join shortly, whatever the case may be.

   ·Student barred form studying.

   the student /review applicant is very upset and heart broken. He wishes to study English for a year and wishes to go back as no one could help him. In addition, the university giving his fees to third party, there is no guarantee that same thing will not happen in the future. Therefore, the applicant only wishes to study English for a year and wishes to return.

   I will be sending his enrollment documents tomorrow afternoon

33.   The Tribunal has considered the submission of the applicant’s representative on the basis the applicant sent money to his education provider for the initial tuition, was granted a visa but was told after he arrived that the funds had been taken by his agent and the applicant could not afford to pay the fees again, had no enrolment and his visa was cancelled. The representative raised issue as to why the agent was given the funds with no request from the applicant, when the visa was granted, it breached the 6-month rule and resulted in the applicant being barred from studying.

34.   However, it places more weight on the evidence from the University of Queensland given to the Department as to the reason the applicant’s enrolment was cancelled, as raised with the applicant via s.359A, which was that he attempted to gain entry to UQ by submitting  a fraudulent academic transcript. The representative’s submission does not address this alleged fraudulent behaviour as to why his enrolment was cancelled rather gives a different reason as to why enrolment was cancelled. It has considered the claimed reasons for the cancellation of the enrolment as raised by the applicant via his representative as outlined above but places more weight on the evidence from the University of Queensland as to why his enrolment was cancelled.

1. Therefore, based on the PRISMS record and evidence from the applicant’s education provider, the University of Queensland, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (COE) in a registered course or a full-time course of study or training from 8 March 2018 to 19 November 2018 while the holder of a Subclass 500 Student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).

2. The Tribunal is therefore satisfied that the grounds for cancellation in s 116(2)(b) exist.

   Consideration of the discretion to cancel the visa

3. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.

4. 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’.

   Background

5. The information before the Tribunal indicates that the applicant is a 31-year-old citizen of Pakistan. He arrived in Australia on 11 March 2018 on a Subclass 500 Student visa valid to 15 March 2020 to undertake a Master of Data Science at the University of Queensland, however enrolment was cancelled on 8 March 2018. On 14 February 2020 the applicant submitted an Offer Letter dated 13 February 2020 to study a General English course form 16 March 2020 to 11 September 2020 at Australasia Language College. The agent stated in this email that the applicant wished to complete this course. A no study condition was placed on his visa on 28 August 2020 and the Tribunal accepts he has been unable to study from this date.

6. The applicant did not respond to the Department’s NOICC dated 29 October 2018 and other than the offer letter and the submission of the applicant’s representative dated 11 February 2020 outlined above, has not provided further documents or evidence in this matter.

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

41.   The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. It has considered the submission of the applicant’s representative from 11 February 2020 that the applicant came to study, his visa was granted, the applicant sent money to his education provider for the initial tuition but was told after he arrived that the funds had been taken by his agent and the applicant could not afford to pay the fees again, had no enrolment and his visa was cancelled. The representative raised issue as to why the agent was given the funds with no request from the applicant, when the visa was granted

42.   However, it places more weight on the evidence from the University of Queensland given to the Department as to the reason the applicant’s enrolment was cancelled, as raised with the applicant via s.359A, which was that he attempted to gain entry to UQ by submitting  a fraudulent academic transcript. The representative’s submission does not address this alleged fraudulent behaviour as to why his enrolment was cancelled rather gives a different reason as to why enrolment was cancelled. It has considered the claimed reasons for the cancellation of the enrolment as raised by the applicant via his representative as outlined above but places more weight on the evidence from the University of Queensland as to why his enrolment was cancelled.

1. It has considered the offer to study the English course but infers due to its timing,  around 2 years after he came to Australia that it was likely procured for strategic reasons rather than with a genuine desire on the part of the applicant to study. There is no evidence from the applicant that he began this course before the no study condition was placed on his visa on 28 August 2020 and as raised with the applicant via s.359A the PRISMS record indicates he has not been enrolled in a course of study since 8 March 2018, noting he has been unable to since 28 August 2020.

2. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

   The extent of compliance with visa conditions

3. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 8 March 2018 to 19 November 2018. The Tribunal considers this period to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

4. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his visa.

5. Although there is no other evidence of non-compliance other than the above, considering the period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, and the reason for the cancellation of the applicant’s enrolment, the Tribunal considers this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

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

6. In his submission dated 11 February 2020 the applicant’s representative said that the applicant is “very upset and heartbroken” at having his enrolment cancelled and that he wishes to study English for a year before returning, presumably to Pakistan. The Tribunal does not accept this claim when the evidence indicates he fraudulently obtained enrolment at UQ and he only obtained an offer of enrolment to study English 2 years after he arrived when the matter was being considered by the Tribunal (differently constituted). There is no evidence from the applicant that he started this English course in March 2020 before the no study condition was placed on his visa  on 28 August 2020 and as raised with the applicant via s.359A the PRISMS record indicates he has not been enrolled in a course of study since 8 March 2018.

7. The Tribunal gives this consideration neutral weight.

   Circumstances in which the ground of cancellation arose

8. The evidence before the Tribunal is that the applicant’s enrolment was cancelled by his education provider as he was granted a COE on the basis of fraudulent academic documents. It has considered the submission of the applicant’s’ representative as to why the cancellation arose but places more weight on the evidence of education provider as to the reasons for the cancellation of the applicant’s enrolment. It views the evidence of the education provider to be more reliable.

9. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa.

10. The Tribunal considers that this factor weighs in favour of the exercise of the Tribunal’s discretion to cancel the visa.

    Past and present behaviour of the visa holder toward the Department

11. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight against cancelling the visa.

    Whether there would be any consequential cancellations under s 140

12. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor neutral weight.

    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

13. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.

14. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to Pakistan, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to Pakistan, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal.

15. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 he also may not be granted a further visa for 3 years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12. However, those are also intended and legitimate consequences of cancellation.

16. The Tribunal gives this consideration neutral weight.

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

17. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.

18. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child or that it would be in contravention of the Convention Against Torture.

19. The Tribunal gives this consideration neutral weight.

    Any other relevant matter

20. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that lead to the Tribunal to exercise its  discretion not to cancel the visa. This is particularly the case as the applicant has not engaged with the Tribunal other than via his representative in February 2020. The Tribunal notes that cancellation of the visa is the intended consequence of breach of the relevant condition.

21. Overall, the Tribunal considers that the limited aspects against cancelling the visa outlined above do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.

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

    DECISION

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

    Gabrielle Cullen
    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.