Rana (Migration)

[2019] AATA 1616

Rana (Migration) [2019] AATA 1616 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muaaz Ahmed Khan Rana

CASE NUMBER:  1700060

HOME AFFAIRS REFERENCE(S):           BCC2016/3743846

MEMBER:Joseph Lindsay

DATE:17 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa.

Statement made on 17 January 2019 at 1:50pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – not genuine student – enrolments in a number of courses – did not complete any courses – incorrect advice – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 119, 140
Migration Regulations 1994 (Cth), r 2.43

CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 29 December 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector (Subclass 573) visa (the TU573 visa) under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the applicant was not a genuine student. 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 appeared before the Tribunal on 6 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted without the assistance of an interpreter.

4. The applicant was represented in relation to the review by his registered migration agent. However, the applicant’s agent did not attend the hearing.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

7. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

8. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s.116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

9. For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A) of the Act and r.2.43(1C) and (1D) of the Migration Regulations 1994. The prescribed matters are set out in the attachment to this decision.

10. In the hearing, the applicant claimed he was a genuine student. The Tribunal has considered whether the available evidence supports the applicant’s claim that he is a genuine student.

11. During the hearing, the Tribunal discussed the applicant’s Provider Registration and International Student Management System (PRISMS) record with him.

12. In the course of the hearing, the applicant agreed that the information about his student history detailed in the PRISMS record was correct. Accordingly, the Tribunal finds that there is no information in the PRISMS record that is adverse to the applicant.

13. The PRISMS record shows that since the applicant was granted his most recent student visa on 30 April 2015, the applicant has not completed a single course. The PRISMS record shows that the applicant had enrolments in a number of courses including a Bachelor of Business, a Certificate III in Commercial Cookery, a Certificate III in Light Vehicle Mechanical Technology, a Certificate IV in Commercial Cookery, and a Diploma of Hospitality. The applicant agreed that he did not complete any of these courses.

14. The Tribunal asked the applicant if there any reason why he enrolled in courses in hospitality and commercial cookery and did not do them, to which he responded that when his previous visa was expiring in April 2015, he discussed with his agent to apply for the student visa for the Bachelor’s degree and he was offered a package course (including the Certificate III in Commercial Cookery, the Certificate IV in Commercial Cookery and the Diploma of Hospitality) leading to the Bachelor of Business.

15. The Tribunal asked the applicant whether the package course led to him attaining the Bachelor of Business, to which he indicated it did not. When asked why not, the applicant indicated he changed from the Certificate III in Commercial Cookery to the Certificate III in Light Vehicle Mechanical Technology and that, while he was studying the Certificate III in Light Vehicle Mechanical Technology, he forgot to extend the Confirmation of Enrolment (CoE) for the Bachelor of Business. The applicant indicated he wanted to finish the Certificate III in Light Vehicle Mechanical Technology.

16. When the Tribunal put to the applicant that he didn’t finish the Certificate III in Light Vehicle Mechanical Technology, the applicant responded that he didn’t finish that course because the Department of Immigration cancelled his visa.

17. The Tribunal put to the applicant that the Department’s decision was given to him on 29 December 2016, yet the PRISMS record showed that on 10 November 2016, which is before he got the decision, he allowed his enrolment in the Certificate III in Light Vehicle Mechanical Technology to lapse because of ‘unsatisfactory course progress.’ In response, the applicant agreed that the PRISMS information was correct.

18. In respect of the applicant’s most recent enrolment in a Bachelor of Business that was to commence on 7 August 2017, the applicant indicated he did not apply to the Department to be able to study whilst he was on a Bridging Visa E despite having assistance and advice from various migration agents including Carina Ford. The applicant indicated his agent never told him he could apply to the Department to be allowed to study whilst he was on a Bridging Visa E.  In the circumstances, the Tribunal places low weight on the applicant’s submissions in this respect.

19. The Tribunal put to the applicant the concern that he did not appear to be aware of the issues the delegate considered in cancelling his visa. In response, the applicant indicated that he was not aware of the particular issues the delegate considered in cancelling his visa, as he had not read the decision since he received it in December 2016.

20. Based on the above information, the Tribunal does not accept that the applicant is a genuine student. The Tribunal finds that since the applicant was granted his most recent student visa on 30 April 2015, the applicant has not completed a single course. The Tribunal finds that the applicant’s student history does not convince the Tribunal that he is a genuine student.

21. Accordingly, the Tribunal finds that the applicant is not, or is likely not to be, a genuine student and that there are grounds for cancellation of his student visa under s. 116(1)(fa)(i) of the Act.

    Consideration of the discretion to cancel the visa

22. 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 Procedures Advice Manual (PAM3), ‘General visa cancellation powers’.

    Circumstances in which ground of cancellation arose

23. The Tribunal then referred to the delegate’s decision that refers to a range of information pertaining to the circumstances in which the ground for cancellation arose. The Tribunal put this information to the applicant:

    a.On 30 April 2015, the applicant was granted his current TU573 visa valid until 15 March 2019, on the basis of undertaking Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business at Acknowledge Education Pty Ltd.

    b.Based on evidence available in PRISMS, he commenced the Certificate III in Commercial Cookery course on 18 May 2015 with his last day of study for this course recorded as 28 August 2015. The applicant did not commence any of the other courses included in the above package and on 25 November 2015, enrolled in a Certificate III in Light Vehicle Mechanical Technology at Technical Education Australia Pty Ltd. 

    c. PRISMS indicates the commencement and conclusion dates for the Certificate III in Light Vehicle Mechanical Technology were 2 December 2015 and 4 January 2017. On 10 November 2016, the applicant was reported by the education provider for unsatisfactory course progress. The applicant’s enrolment for this course was cancelled on 10 November 2016 with his last day of study recorded as 28 August 2016.

    d.PRISMS also indicates the applicant ceased to be enrolled in the Bachelor of Business on 8 April 2016 and that the applicant has not held enrolment in a course of study specified for TU573 visas since that date.

    e.Since being issued the Notice of Intention to Consider Cancellation (NOICC) on 5 December 2016, PRISMS indicates the applicant obtained enrolment and was then studying a Certificate III in Light Vehicle Mechanical Technology at Technical Education Australia Pty Ltd, commencing on 6 December 2016 to 20 June 2017. On 15 December 2016, the applicant also obtained enrolment to study a Bachelor of Business at Australia School of Management, due to commence on 7 August 2017 until 16 June 2020.

    f.Information before the Department indicates the applicant arrived in Australia on 12 February 2012 on his previous TU573 visa. The applicant has travelled offshore once between 18 January 2014 and 11 March 2014.

    g.The applicant’s study history indicates that he was granted his current TU573 visa on the basis of undertaking Certificates III and IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business. PRISMS indicates the applicant only commenced studying the Certificate III in Commercial Cookery but never managed to complete it. The applicant also did not commence any of the other courses included in the above mentioned package.

    h.The applicant’s study history indicates that he did not undertake studies in a registered course from 28 August 2016 to 6 December 2016 and did not maintain enrolment in a registered course at the Higher Education Sector level from 8 April 2016 until the commencement of his current course in Certificate III in Light Vehicle Mechanical Technology on 6 December 2016.

    i.PRISMS indicates that since arriving onshore on 12 February 2012 and having held two TU573 visas, the applicant has not completed any Higher Education Sector level course.

    j.PRISMS indicates that for each of his TU573 visas, the applicant has deviated from his original study plan. The applicant has also been reported by his education provider on 10 November 2016 for unsatisfactory course progress.

    k.The applicant completed Certificate IV in Business, Diploma and Advanced Diploma of Management in October 2014. However, since this time, he has failed to complete any course of study on his current student visa, demonstrating a lack of academic progression over a significant period of time.

24. The applicant indicated he agreed that all of the above facts were correct.

25. The Tribunal then put further information in the delegate’s decision record to the applicant pertaining to the circumstances in which the ground for cancellation arose. In the response to the Department, the applicant indicated:

    a.Before commencing studies in Australia, the applicant had not undertaken tertiary studies. He found his transition to studies in Australia difficult, and he struggled with cultural adjustment and differences in learning styles. As such, the applicant felt he was not equipped to complete a Bachelor level course.

    b.The applicant spoke to his education provider, Central Queensland University (CQU), regarding his difficulties and about enrolling in a lower level course. CQU refused this request, advising he could only enrol in a VET course as a Subclass 572 visa holder.

    c.The applicant sought the advice of an education agent who advised him to complete a Certificate IV in Business and a Diploma and Advanced Diploma in Management, leading to a Bachelor of Business. He acknowledges he received incorrect advice from a person who is not a registered migration agent.

    d.The applicant provided evidence of his new enrolment to CQU in order to obtain a release letter; however, his enrolment in the Bachelor of Business was instead cancelled.

    e.The applicant commenced the Certificate IV in Business at St Peter’s Institute, successfully progressing to the Diploma and Advanced Diploma of Management, which he completed on 19 October 2014.

    f.The applicant then commenced studies in a Bachelor of Business at Stott’s College, at which time he was required to apply for another student visa, as his current visa was due to expire in April 2015.

    g.The applicant sought assistance from a migration agent who advised him that the Department would not issue him another student visa if he was only enrolled in Bachelor of Business, due to his previous study history. The agent advised him he would not need to continue with his current Bachelor of Business course as he organised enrolment in a Certificate III in Commercial Cookery, a Certificate IV and Diploma in Hospitality and a Bachelor of Business. He now acknowledges he received incorrect advice.

    h.In May 2015, the applicant commenced the Certificate III in Commercial Cookery; however, he did not enjoy this course.

    i.The applicant requested Stott’s College to cancel his enrolment in the Cookery and Hospitality courses so he could proceed straight to the Bachelor of Business. Stott’s College issued him with a new CoE for the Bachelor of Business, due to commence in 2017.

    j.In order to remain compliant with his visa conditions, the applicant enrolled in the Certificate III in Light Vehicle Mechanical Technology.

    k.The applicant submitted that he has successfully completed Certificate IV in Business and Diploma and Advanced Diploma of Management.

    l.The applicant acknowledged that his previous enrolment in Certificate III in Light Vehicle Mechanical Technology was cancelled by the education provider on 10 November 2016 due to poor course progress.

    m.In the second half of 2016 the applicant experienced significant personal difficulties – an arranged engagement to a woman in Pakistan. The applicant acknowledges that as a result of this situation, his focus on his studies suffered, however he has now come to terms with the news to the point that it will no longer impact on his studies.

26. In response, the applicant indicated he agreed that all of the above facts were correct.

27. The Tribunal discussed with the applicant the delegate’s finding that while the applicant may have experienced some difficulties in adjusting to studying and living in a foreign country, the applicant’s circumstances did not sufficiently justify his non-compliance (with his visa conditions). The applicant provided no further comment on this issue.

28. The Tribunal discussed with the applicant the delegate’s finding that the applicant sought advice from education and migration agents and on each occasion received incorrect information. The applicant provided no further comment on this issue.

29. The Tribunal discussed with the applicant the delegate’s finding that the applicant attempted to address the difficulties he faced with his studies by attempting to enrol at a lower course level with a different education provider. The applicant provided no further comment on this issue.

30. The Tribunal discussed with the applicant the delegate’s findings that:

    a.Upon commencement of the Certificate III in Commercial Cookery the applicant found he would not enjoy this study pathway, and he claims he instead wanted to proceed to the straight to the Bachelor of Business.

    b.As a result, the applicant’s enrolment in the Cookery and Hospitality courses were cancelled on 4 September 2015.

    c.PRISMS indicates the applicant was issued a new CoE to commence studies in the Bachelor of Business as he wished.

    d.This course was due to commence on 14 March 2016; however, the enrolment was cancelled on 8 April 2016 due to non-commencement of studies.

    e.The applicant’s actions were contrary to the claims made in his NOICC response, and he did not have any genuine intention to continue his studies in the Bachelor of Business.

31. In response, the applicant indicated that he wanted to study the Certificate III in Light Vehicle Mechanical Technology.

32. The Tribunal discussed with the applicant the delegate’s findings that:

    a.The applicant instead enrolled in the Certificate III in Light Vehicle Mechanical Technology.

    b.The applicant submitted that his failure to complete this course, and the subsequent cancellation of his enrolment on 10 November 2016, was a result of personal issues that impacted negatively on his studies.

    c. This did not negate the fact that he has failed to show any significant academic progress over a considerable period of time.

33. The applicant provided no further comment on these issues.

34. The Tribunal discussed with the applicant the delegate’s findings that:

    a.The applicant recommenced his studies in the Certificate III in Light Vehicle Mechanical Technology and has obtained enrolment in a Bachelor of Business due to commence in August 2017.

    b.The applicant’s last date of study prior to the commencement of his current course was 28 August 2016, and his last date of enrolment in a registered course and the Higher Education level was 8 April 2016.

    c.Both of these recent enrolments were obtained subsequent to the NOICC being issued on 5 December 2016.

    d.The applicant was motivated to recommence his studies only to rectify his non-compliance.

    e. The applicant’s actions were not reflective of a genuine intention to study.

    f.Since arriving onshore as a student on 12 February 2012 and having held two TU573 visas, the applicant has not completed any Higher Education Sector level course.

    g.The applicant has also failed to complete any course of study on his current student visa.

    h. The applicant does not have a genuine intent to study at the Higher Education Sector level and complete the Bachelor of Business.

    i.The recent re-commencement of his studies and enrolment at the Bachelor level does not demonstrate a genuine commitment towards his studies as they were obtained subsequent to the NOICC being issued.

1. The applicant provided no further comment on these issues.

2. In assessing the above information, the Tribunal makes the following findings.

3. The Tribunal accepts that the applicant faced difficulties in adjusting to studying and living in a foreign country but places low weight on this issue.

4. The Tribunal accepts that the applicant received poor advice from education and migration agents but places low weight on this issue.

5. The Tribunal accepts that in the second half of 2016 the applicant experienced significant personal difficulties in regard to an arranged marriage to a woman in Pakistan but places low weight on this issue.

6. The Tribunal does not accept that the applicant’s personal difficulties or any poor advice received from education and migration agents sufficiently explain or justify his poor academic progress or his failure to complete any higher education courses whilst he has held his student visa.

7. The Tribunal does not accept that the applicant’s circumstances in which the ground for cancellation arose were in any way outside of his control or were exceptional circumstances.

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

8. In response to this issue at the hearing, the applicant indicated his main purpose in travelling to Australia was to study.

9. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

   The extent of compliance with visa conditions

10. In response to this issue at the hearing, the applicant submitted that he had complied with his visa conditions. However, the applicant admitted that he had not complied with condition 8202 which required him to maintain enrolment in a registered course of study.

11. Accordingly, the Tribunal gives no weight in the applicant’s favour in regard to this factor.

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

12. During the hearing, the Tribunal put to the applicant information from the decision record about the hardship he may suffer.

13. The decision record referred to the following ways the applicant indicated he may suffer hardship if his student visa was to be cancelled:

    a.The applicant needed to complete the Bachelor of Business in order to gain employment and an income upon his return to Pakistan;

    b.If the applicant does not achieve the Bachelor of Business, he will be unable to fulfil plans of purchasing a service station business;

    c.The applicant is concerned he will not be able to fulfil his cultural duty as the eldest son to work and provide for his family;

    d.The applicant’s impending arranged marriage may be negatively impacted, if he does not complete his studies;

    e.If his student visa is cancelled, the applicant will return to Pakistan and be required to commence his studies from the beginning, placing him significantly behind his peers.

14. The applicant indicated to the Tribunal that he would still suffer the hardships as referred to in the decision record.

15. The Tribunal queried the applicant in respect of his assertion that he needed to complete a Bachelor of Business in order to run a service station business. The Tribunal asked the applicant if he wanted to run a service station business, to which he responded ‘yes.’ The Tribunal asked the applicant if he had ever run a service station business, to which he responded ‘no’. The Tribunal then asked the applicant why he wanted to run a service station business, to which he indicated that he had worked as a manager of a service station in Pakistan and had worked as in a service station in Australia but not as a manager. The Tribunal then asked the applicant to explain why he needed a Bachelor of Business to run a service station, to which he indicated that he needed to have an education to run a small business in Pakistan. The Tribunal then asked the applicant if he was trying to suggest that he needed a Bachelor of Business to run a service station in Pakistan, to which he responded ‘yes’ but then indicated he needed to know about the business. The Tribunal then asked the applicant if he was trying to suggest that a Bachelor of Business would teach him how to run a service station, to which he responded ‘it will teach me the accounting and the economics of the business’.

16. The Tribunal asked the applicant which part of the Bachelor of Business tells a student how to manage a service station, to which he responded ‘accounting and management’. The Tribunal then asked the applicant if he was trying to suggest that he needed an accounting qualification as part of a tertiary degree to do the books in a service station, to which he responded ‘yes.’ The Tribunal put to the applicant that it found that circumstance hard to believe. In response to an invitation from the Tribunal to comment on this information, the applicant indicated that he had no comment.

17. The Tribunal asked the applicant whether it was his life’s wish to run a service station in Pakistan, to which he responded that it was not his life’s wish but it was his first option to explore when he goes back to Pakistan. The applicant indicated his father was retiring next year and that his father was the zone chief for a government department (Passco) in Pakistan. The applicant indicated that while his father had never run a service station, the plan was that the applicant’s father would retire and then run the service station with the applicant.

18. The Tribunal asked the applicant what his cultural duty was and what he considered his cultural duty to be, to which he responded that in Pakistan, if a person does not hold at least a Bachelor’s degree, he is not considered educated and does not run in the league of educated people in Pakistan.

19. The Tribunal asked the applicant about the status of the impending arranged marriage. In response, the applicant indicated he was going to get married and that his parents were waiting for him to come back to Pakistan. He indicated that the arranged marriage was to a first cousin. He indicated he did not want to get married but in Pakistan it was a cultural expectation. He indicated that his parents arranged for him to get married to a girl when he was here in Australia and that he did not even know about it.

20. In response to an invitation from the Tribunal to comment further on this factor, the applicant indicated that the arranged marriage will not happen if he does not get a degree. The applicant indicated that, if he did not get married, it would be a good thing for him, but not for his family back in Pakistan. He indicated that in the Pakistani culture, arranged marriages are a big thing and not to go through with it would not reflect well at all, and that put him under a lot of pressure. Ultimately, however, the applicant indicated that he accepted he would get married to his first cousin on his return to Pakistan and that this was no longer an issue for him. 

21. In considering the above, the Tribunal accepts that the applicant may face some hardship if his student visa is cancelled. However, the Tribunal does not accept that the applicant will not be able to manage a service station business if he does not hold a Bachelor of Business. The Tribunal notes that the applicant has already completed a number of qualifications in Australia, including a Certificate IV in Business, a Diploma of Management and an Advanced Diploma of Management. Accordingly, the Tribunal finds that even if the applicant does not complete a Bachelor of Business, he still holds Australian educational qualifications that will assist him to find employment in Pakistan – including managing a service station business. The Tribunal finds that, in this respect, the applicant will be able to fulfil his cultural duty to work and provide for his family. The Tribunal places low weight on these issues.

22. In respect of the applicant’s marriage to his first cousin on his return from Pakistan, the Tribunal accepts that this is no longer an issue for the applicant and places low weight on this factor.

    Past and present behaviour of the applicant towards the Department

23. There is no evidence that the visa holder has been uncooperative with the Department in the past.

24. The Tribunal accepts that there is no evidence that the visa holder has been uncooperative with the Department in the past. Having taken this into consideration, I give these considerations some weight in the visa holder’s favour.

    Whether there would be consequential cancellations under s.140

25. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that there were no dependants attached to his student visa.

26. The Tribunal places low weight on this information in the applicant’s favour.

    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

27. When the Tribunal asked the applicant for a response in relation to this question, the applicant indicated that he was aware of the legal consequences of the cancellation of his student visa.

28. The Tribunal accepts that if the applicant’s student visa is cancelled, he would need a visa to remain in Australia lawfully.

29. At present, the applicant is on a Bridging visa E for the purposes of the review. However, once the decision is affirmed, that Bridging visa E will cease to remain in force at some point in the future. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to Pakistan.

30. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

31. The Tribunal places low weight on this information in the applicant’s favour.

    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

32. There is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled.

33. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

34. The Tribunal asked the applicant whether there were any further matters that he wanted to raise, and he indicated there were no matters he wanted to raise. 

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

    Conclusion

36. The Tribunal finds that since the applicant received his TU573 visa on 30 April 2015, now over three and a half years ago, the applicant has not completed any courses, let alone any higher education courses.

37. The Tribunal finds that the applicant is not, or is likely not to be, a genuine student and that there are grounds for cancellation of his student visa under s.116(1)(fa)(i) of the Act.

38. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

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

    DECISION

40. The Tribunal affirms the decision to cancel the applicant’s Student (Temporary) (Class TU) Higher Education Sector visa (Subclass 573).

    Joseph Lindsay
    Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.