Rao (Migration)

[2019] AATA 3461

Rao (Migration) [2019] AATA 3461 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hamna Aftab Rao

CASE NUMBER:  1703577

HOME AFFAIRS REFERENCE(S):          BCC2017/320146

MEMBER:Justin Owen

DATE:29 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 29 July 2019 at 10:09am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – purpose of visa not fulfilled – mental health condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Pakistan born 16 November 1991.  Her Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 2 October 2014 and was subject to condition 8202.  The visa had a stay period with a stay period until 30 August 2017.  On 14 February 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa, as she had ceased to be enrolled in a registered course since 11 May 2015.  The applicant responded to the NOICC on 21 February 2017.  On 22 February 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the 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.

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

5. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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 (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. 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).

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

10. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 22 February 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 11 May 2015.  At the time of the delegate’s decision of 22 February 2017 the applicant therefore had not been enrolled for a total of over 1 year and 9 months. 

11. At the Tribunal hearing the applicant conceded in oral evidence that she had not been enrolled in a registered course between 11 May 2015 and 22 February 2017. 

12. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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’.

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

15. The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia.  The Tribunal notes that the applicant was initially granted a Student visa on 17 January 2013 with a further Student visa granted on 20 October 2014.  The Tribunal notes from the delegate’s decision record the applicant’s submission that she came to Australia with her parents in August 2008 before spending 2009 in Pakistan completing the equivalent of Year 12.  The applicant claimed that after returning to Australia at the end of 2009 she commenced a Diploma in Environmental Science at the Australian Catholic University, completing the course in semester one 2012.  The applicant submitted that she commenced her Bachelor of Environmental Science in second semester 2012 and completed 17 out of 24 units with 8 of those units being granted as an exemption for her previous studies of a diploma of Environmental Science.

16. The Tribunal notes that the applicant requested and was granted a break from her studies due to her health in 2014.  The applicant claims her condition related to both an iron deficiency as well as her mental health.  The applicant then enrolled for first semester of 2015.  The applicant stated that due to her anxiety and mental health she was unable to attend university.  She has not attended university or been enrolled since the eventual cancellation of her enrolment in her Bachelor of Environmental Science degree until the last month (July 2019) when she enrolled in an Advanced Diploma of Leadership and Management at the VET level (T1, Folio. 24).

17. At the hearing the Tribunal asked the applicant what was her purpose for travelling to and staying in Australia.  She responded it was both studying and being with her family.  The applicant’s parents and siblings reside in Australia.  The applicant explained she initially came to Australia as a diplomatic dependent of her father. 

18. The Tribunal notes from the applicant’s evidence that she is close to her parents and immediate family who are all in Australia.  The Tribunal notes the email the applicant provided the Tribunal of a message she sent to the Australian Catholic University on 16 February 2017 seeking enrolment ‘in three or four subjects’.  The Tribunal notes this was days after the applicant received the NOICC from the Department.  In the email the applicant wrote that her whole family was currently in Australia on various visas and all were getting permanent resident visas in a few months.  The applicant wrote that she could not return to Pakistan as her parents and all four of her siblings were already settled in Australia (T1, Folio. 25).  The Tribunal notes from this email that the purpose of the applicant’s visa appears to be as much about remaining in Australia with her family as it is studying.  The Tribunal notes the Student visa is a temporary visa for educational purposes.  The Tribunal notes that the applicant made these specific enquiries after receiving the NOICC from the Department. 

19. The Tribunal does note that the applicant made at least some attempts to seek enrolment at other educational institutions after the cancellation of her enrolment.  At the hearing she claimed to have approached between ten and twelve universities and colleges seeking to enrol in a course of study.  The Tribunal notes the evidence the applicant provided the Tribunal of efforts made to enquire about potential courses of study at a range of campuses including Bond University, the University of Western Sydney, Southern Cross University, and the University of Canberra (T1, Folio. 25-37).  The applicant stated that her migration agent had made other attempts but all had been unsuccessful.  The applicant states that all the universities contacted refused her enrolment request and many of the universities did not bother to respond to her requests.  The applicant pointed out that her bridging visa had study rights attached to it but universities were not willing to offer her enrolment.  The applicant’s representative at the hearing stated universities were currently not prepared to offer enrolment to students whose application was under consideration at the Tribunal.  The applicant’s representative claimed that universities are providing unofficial information that if they offer enrolment to a student whose application for review is at the Tribunal, and the application is unsuccessful, the ranking of the university shall be affected. 

20. At the hearing the applicant expressed her strong desire to complete the remaining units of her Bachelor of Environmental Science and then complete a Masters so she can enter the teaching profession. 

21. The Tribunal appreciates the applicant’s previous sound record in study and education until 2015 and has taken into account her claims she wishes to complete her study and seek a career.  The Tribunal is not however satisfied that the purpose of her travel to and stay in Australia is for study. 

22. The Tribunal is of the firm opinion that the applicant’s primary purpose is to remain in Australia with her parents and siblings on a permanent basis.  The applicant discussed her family’s permanent residency and the Tribunal notes they have been in Australia for over a decade.  The Tribunal notes the applicant’s email of 16 February 2017 to ACU (T1, Folio. 25) and considers that this highlights the primacy the applicant gives to remaining in Australia with her family permanently.

23. The Tribunal notes that despite the applicant’s enrolment being cancelled on 11 May 2015 for non-payment of fees (as highlighted in the email from ACU the applicant provided the Tribunal: T1, Folio. 26), the applicant did not make any meaningful attempts to reenrol until February 2017 – that is after she received the NOICC from the Department.  The Tribunal appreciates the applicant’s claims that she was suffering from anxiety and was unable to study but in the absence of any corroborative evidence supporting this beyond a letter from her doctor in 2014 concerning her problems from low iron, the Tribunal is not prepared to accept that the purpose of her travel to and stay in Australia is study. 

24. The Tribunal has taken into account the applicant’s claims that she has a desire to study and recently enrolled in an Advanced Diploma of Leadership.  The Tribunal notes however that this enrolment only occurred after receiving the invitation to hearing from the Tribunal and in her written submission to the Tribunal it is admitted that this COE was obtained ‘only to maintain student integrity (T1, Folio. 47). 

25. The Tribunal accepts that the applicant made numerous attempts after her visa was cancelled to reenrol but the Tribunal is of the firm view this was done on the basis of a desire to remain in Australia permanently rather than to complete her studies.                

26. The Tribunal notes the applicant’s claims that she has attempted to enrol in ten to twelve universities without success and the claims made that the universities are not enrolling students on bridging visas with study rights that have reviews before the Tribunal. The Tribunal notes that there are limited examples before the Tribunal of the applications that have been made or the queries that have been made by the applicant: WSU, ACU, Canberra, Southern Cross and Bond.  Whilst recognising the letter from a representative of Western Sydney University that they are ‘likely’ to reject an application if the student has a breached a visa condition leading to a cancellation, the Tribunal is not prepared to rely on what is largely hearsay and give any significant weight to the claims or generalisations made that universities are refusing to enrol students on bridging visas that have outstanding reviews.  The Tribunal notes that even if this was the case, the applicant only attempted to contact these institutions after she received the NOICC over a year and nine months after her visa was cancelled. 

27. The Tribunal on the evidence does not consider the applicant has a compelling need to remain in Australia for the purpose of her studies.  The Tribunal considers the applicant could enrol in a similar course of study offshore.  The Tribunal is of the firm view the purpose of the applicant’s visa is to remain in Australia for migration purposes.  On the evidence before concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor in favour of cancelling the visa.

28. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. 

29. There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions beyond her failure to comply with Condition 8202.  The oral testimony of the applicant suggests that the applicant was aware she was in breach of the conditions of her Student visa by failing to remain enrolled in a higher education course of study.  The Tribunal also notes that the applicant has previously held a Student visa before the visa cancelled in February 2017.  The Tribunal considers the applicant had at least a rudimentary knowledge of the conditions pertaining to her visa.  The Tribunal has taken into account the applicant’s explanation as to her failure to remain enrolled in a registered course of study for multiple years (including her mental health claims; the claims of harassment from offshore; her physical health claims and her claims concerning the reticence of universities in offering her an enrolment).  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

30. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should her Student visa be cancelled.  

31. The applicant in her oral testimony pointed out that her parents and her siblings all reside in Australia.  She said in relation to hardship and herself that she could not live without her parents. 

32. The applicant said that she could not live with her relatives that remain in Pakistan.  The applicant explained that there was significant stigma attached to herself in Pakistan due to the past actions of a male who she claims harassed her on an ongoing basis since 2009.  The applicant has claimed that she has suffered significant harassment which began when she returned to study in Pakistan in 2009 and continued from thereon.  The applicant claims this harassment precipitated her claimed mental health problems.  The applicant claims after she returned to Australia and was studying at her Diploma the male uploaded a fake Islamic marriage contract on Facebook and spread claims he was married to her.  The applicant claims this caused problems with her family both in Pakistan and in Australia. 

33. The applicant stated that she doubted she would be able to complete her studies in Pakistan as she would have nowhere to live if she returned and things would be difficult for her as a single woman. 

34. The Tribunal accepts there would be some hardship to the applicant should her visa be cancelled.  The Tribunal accepts, notwithstanding her ability to remain in contact with her parents and siblings, that there would be a degree of stress and anxiety upon the applicant should her visa be cancelled and her family remains in Australia.  The Tribunal accepts that she is emotionally close to her parents and siblings. The Tribunal does however note that the applicant would be eligible to apply for a bridging visa E that may allow her to remain in Australia in order to finalise any outstanding issues.  The Tribunal furthermore notes that her uncle and his family, who she previously resided with for about a year after last returning from Australia, are still in Pakistan.

35. The Tribunal has taken into account the applicant’s claims she can no longer live with her family that remains in Pakistan principally due to the alleged actions of the Pakistani male that she claims has harassed her for over a decade and claimed they were married.  Given the Tribunal, with the lack of corroborative evidence of such threats, does not accept the claim the applicant has been threatened and harassed for such a period of time, the Tribunal does not accept that the applicant would be shunned by her extended family in Pakistan and have nowhere to live should she return.  Similarly, whilst recognising the applicant’s claim concerning the challenges she faces as a single woman in Pakistan, the Tribunal is not convinced on the evidence before it that the applicant will be shunned by her extended family and be alone should she return.              

36. The Tribunal accepts there would be some hardship in relation to her study: the Tribunal accepts that the applicant only has seven units to complete her Bachelor degree, an amount she stated to the Tribunal she could complete in a year.  The Tribunal however notes that the applicant has not studied now for over five years.  The applicant’s enrolment was cancelled for the non-payment of fees (as outlined in correspondence she provided to the Tribunal) and attempts to reenrol were only made after receiving the NOICC a year and nine months after her enrolment was cancelled.  The Tribunal nevertheless considers there is some limited hardship in relation to her studies.  The Tribunal notes the applicant may also be able to utilise her completed studies as credit and advanced standing in a future course. 

37. The applicant told the Tribunal she has worked for the past five to six years at the Subway fast food outlet.  The Tribunal notes that the cancellation of her visa and departure from Australia will mean her employment will cease.  There is no evidence however that she would be unable to seek gainful employment outside of Australia: the Tribunal notes she has successfully worked for some years for the same employer in Australia and furthermore is qualified at the Diploma level.  The Tribunal also notes the applicant has made no claim that her parents and family are reliant in her wages for their family household.

38. The Tribunal has considered any hardship that might be caused to the applicant from a health perspective should she return to Pakistan.  There is no evidence before the Tribunal or claim made that she has ever sought professional assistance for any mental health problems, notwithstanding her claim she would seek some in the future once her visa issues are dealt with.  Likewise the Tribunal notes her previous health issues in relation to a deficiency of iron.  She has sought and been successfully receiving treatment for that now for a number of years.  There is no reason before the Tribunal that she will be unable to continue doing so in Pakistan.  The Tribunal does not consider there to be any particular hardship to the applicant in relation to her health. 

39. The Tribunal has also reviewed the applicant’s claims concerning the alleged stalking and abuse by a Pakistani male over the last decade.  The Tribunal has noted the applicant’s claims that she still receives a message from the male asking her to talk to him every three to four months but in the absence of any significant evidence of this behaviour – or evidence of complaints being made to the Police or authorities - gives the claims little weight.   

1. The Tribunal has considered the hardship that may be caused to the applicant’s family.  The Tribunal accepts that cancellation of the applicant’s visa may be a stressful situation to the applicant’s parents and siblings who currently reside with the applicant.  The Tribunal notes however that the applicant’s parents and siblings can travel with the applicant to Pakistan if they see fit.  They can remain in contact with her continually via modern communication.  They have family members remaining in Pakistan who they can reach out to for assistance with their daughter and sister the applicant.  As discussed by the Tribunal in paragraph 35 of this decision, as the Tribunal does not accept, in the absence of corroborative evidence, the applicant’s claims concerning the decade-long harassment and threats from a Pakistani male claiming to be married to her, the Tribunal does not accept the premise that she would be shunned by her extended family in Pakistan for these reasons should she return.  The Tribunal considers that the applicant could in fact have the support of her extended family should she return to Pakistan.       

2. The Tribunal notes that the applicant stated that she does not have a husband or partner in Australia and does not have any children meaning that cancellation of her visa will not have a knock on effect upon such parties.

3. The applicant said that her mother needs her to stay in Australia.  The Tribunal accepts that the applicant’s mother would prefer the applicant to remain in Australia: that is an understandable state of affairs.  The Tribunal nevertheless notes that the basis of the applicant’s presence in Australia was a student visa: a temporary visa for the purposes of study. 

4. The applicant said that her culture demanded that until she was married she had to remain living with her parents.  The Tribunal accepts that the applicant’s parents – and the applicant – would prefer to remain living together in Australia.  The Tribunal however again notes that she was on a temporary Student visa for the purposes of study.  She has not studied since 2015 (notwithstanding her recent enrolment).        

5. The Tribunal accepts that there will be a degree of hardship caused to the applicant and her family should her visa be cancelled.  The Tribunal accepts that the cancellation may be difficult on the applicant in particular given her immediate family now resides in Australia and the Tribunal accepts from the applicant’s oral testimony that she is close to her parents.  In relation to the impact upon her study, the Tribunal also considers there to be some hardship imposed on the applicant given that she is only 7 units away from completing her Bachelor’s degree.  Outweighing this however is the fact that she was not enrolled for over four years and only sought enrolment after receiving her NOICC.  On the evidence before the Tribunal, the Tribunal gives little weight to the claims before it concerning the alleged stalking of the applicant and its impact upon the applicant.  Nevertheless the Tribunal accepts there would be some hardship to the applicant should she be compelled to depart her parents and immediate family.    On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor slightly against cancelling the visa.

6. The Tribunal has considered the circumstances in which the ground for cancellation arose.

7. The Tribunal notes that the applicant had a sound academic record, completing a Diploma of Environmental Science and completing 17 units of a Bachelor of Environmental Science out of 24 units, prior to being in breach of her visa by failing to meet the ongoing requirements of condition 8202 and remaining enrolled in a registered course of study. 

8. At the hearing the Tribunal noted the applicant was not enrolled from May 2015 until the delegate’s decision over a year and a half later.  The Tribunal enquired as to why she failed to remain enrolled.  The applicant responded that she had too much anxiety to remain enrolled.  The applicant claimed the alleged stalking she faced from a male individual in Pakistan that commenced in 2009 had a negative impact upon herself and her ability to study.  The Tribunal notes the claims in her written submission that whilst in Pakistan she was threatened with kidnapping and physical harm with the harassment continuing after she returned to Australia.  The applicant claims the Pakistani male figure created a fake Facebook account in her name and uploaded a fake marriage certificate.  The applicant claims that her parents did not at first believe her, causing her to suffer depression and anxiety.  She claims her parents did begin to believe her after her father was allegedly threatened by the Pakistani male.  The applicant has also claimed she was physically and verbally abused by an international student whilst studying at Australian Catholic University.  The applicant claims that the harassment still randomly continues today and it has been this harassment which has caused her anxiety and has precipitated a situation where she was unable to study and subsequently failed to maintain her enrolment.   

9. The Tribunal noted the applicant had received a deferral from her studies when she was suffering from an iron deficiency (T1, Folio.41-42) in 2014.  The Tribunal notes that according to the decision record the applicant then enrolled for semester 1 in 2015.  The Tribunal notes the applicant claimed she was however unable to collect the courage to attend university because of a fear she would be again be humiliated for failing exams and having to repeat a course with juniors when her fellow classmates had already progressed in their course.

10. At the hearing the Tribunal asked the applicant if she sought another deferral from the university given her claimed mental health.  She replied that she was suffering from too much anxiety as her friends had already passed another semester.  The Tribunal asked the applicant if she contacted the Department to discuss her situation or enquire about the consequences of non-compliance.  She responded she had not because of her anxiety and she couldn't talk to someone.

11. The Tribunal asked the applicant what evidence she had to demonstrate she was unfit for study beyond May 2015.  The applicant said she didn’t go to anyone.  The Tribunal asked if she had seen a pyschologist or received any mental health treatment.  The applicant said she had not.  She claimed she could not do so as she did not have medical insurance. 

12. The Tribunal has considered the applicant’s claims and the evidence she has provided in relation to the circumstances in which the ground for cancellation arose. 

13. The Tribunal has noted the applicant’s claims concerning her mental health and anxiety she states stopped her from studying in 2015 and remained an impediment for some years.  The Tribunal notes however that there is no evidence – or claim made – of any mental health treatment over this significant period of time.  There is no mental health plan, no evidence of any medical appointments or treatment related to any mental health claims and there were no visits to a medical professional beyond diagnosis and treatment for an iron deficiency.  The Tribunal accepts that some sufferers of mental health conditions are reticent in seeking either a diagnosis or assistance in addressing their health.  Nevertheless the Tribunal notes that the applicant has provided no evidence of either seeking medical treatment for her mental health.  The Tribunal notes the applicant did claim to be depressed and suffering from anxiety in an email to ACU in February 2017 (T1, Folio. 25) but notes this claim was made after receiving the NOICC and in the absence of any supportive evidence.  In the absence of any corroborative evidence whatsoever in relation to the applicant’s mental health, the Tribunal gives the claim little weight. 

14. The Tribunal notes the applicant’s claims concerning the behaviour of a male in Pakistan towards her for almost a decade and her claims his behaviour has had a corrosive impact upon her mental health and her ability to study.  At the hearing the applicant claimed this individual had claimed he was married to her, had spread false and malicious disinformation concerning her on Facebook that had damaged her family relationships and had harassed and threatened her father.  The Tribunal has had regard to the applicant’s claims but notes the paucity of evidence in relation to this individual and his alleged behaviour towards the applicant and her father.  The applicant said that her father had eventually prepared a divorce deed – despite the fact she was not married to the individual - that the individual allegedly harassing her agreed to sign. The Tribunal has taken into account the copy of a divorce deed from 15 March 2011 (T1, Folio.43) that states a Mr Mohammad Naveed divorces the applicant (the applicant claims he is the individual that has harassed her). The Tribunal has noted the applicant’s claim that her father had prepared the deed because of the false claims she was married so she would be able to marry in the future.  The Tribunal has carefully considered the applicant’s claims concerning harassment and its impact upon her ability to maintain her enrolment and study but, in the absence of any further corroborative evidence beyond a 2011 copy of a divorce certificate, gives the claims of ongoing harassment for up to a decade little weight.

15. At the hearing the Tribunal asked the applicant if she had previously held a Student visa.  She agreed she had done so.  The applicant agreed that she was aware that a condition of her Student visa was that she remained enrolled in a registered course of study.  She furthermore agreed that she was aware that not being enrolled in a registered course of study would impact upon her eligibility to continue to hold her Student visa.  The Tribunal has noted her oral testimony that she was aware her lack of enrolment would impact upon her eligibility to hold her visa but because of her state of mind she wanted to close her eyes to everything.  The Tribunal however gives the claim little positive weight given the absence of corroborative supportive evidence concerning her mental health – or what it considers a plausible explanation for the lack of such evidence.

16. The Tribunal also gives little weight to the applicant’s claim she was unable to seek professional medical assistance and advice for her claimed mental health issues due to her lack of medical insurance.  The Tribunal notes that holders of a Student visa are expected to hold adequate medical insurance as part of their conditions.  The Tribunal furthermore notes she has been residing with her parents and considers she could have obtained assistance from her family should she had needed assistance in seeking professional medical help. 

17. The Tribunal notes the applicant’s claims that she only attempted to seek enrolment again after she received the NOICC from the Department in 2017, over a year and a half after her enrolment was cancelled.  At the hearing she agreed that she only attempted to enrol in a course after receiving her NOICC.  The Tribunal acknowledges she made multiple attempts to contact various universities in 2017 after she received her NOICC in pursuit of an enrolment and appreciates she found a number of the providers difficult in terms of gaining a new CoE.  The Tribunal nevertheless notes that the applicant only made contact after she was informed about the intention to cancel her visa.  In the email she sent to ACU she states that she can’t return to Pakistan due to her whole family having settled in Australia (T1, Folio.25).  The Tribunal is of the opinion the applicant’s desire to seek a new CoE appears to be for migration purposes rather than study.  The Tribunal            

18. The Tribunal has noted the applicant’s claims concerning her mental health and her statement that she was suffering anxiety which stopped her from continuing her studies.  The Tribunal finds that there is little corroborative evidence in support of the applicant’s mental health claims.  Similarly there is little evidence of the harassment the applicant claims she endured from a Pakistani male for many years and which she says impacted on her mental health and her ability to study.    The Tribunal has taken account of the applicant’s claims that she was concerned about failing and falling behind her peers but it does not accept that the applicant’s circumstances precluded the applicant from maintaining her enrolment.  There is no evidence that the applicant sought any professional assistance or advice to help treat or address the claimed anxiety and stress.  The applicant only sought to reenrol in 2017, more than a year and a half after her visa was cancelled and after receiving her NOICC from the Department.  In relation to the circumstances in which the ground of cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

19. The Tribunal has considered the past and present behaviour of the applicant towards the Department.    There is no evidence before the Tribunal that the applicant has not complied with all other visa conditions.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

20. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

21. The Tribunal has considered whether there are 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 of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

22. The Tribunal notes that the applicant will become an unlawful non-citizen if her visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if she does not voluntarily depart Australia.  She will also be subject to an s48 bar which will limit her options in applying for further visas in Australia.  The Tribunal notes that the applicant, if she were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date.  The Tribunal however also notes that if her visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow her to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

23. The Tribunal has taken into account the applicant’s claims.  The Tribunal has some sympathy for the applicant and accepts her claims she is close to her family in Australia and she was a sound student until 2014.  The Tribunal notes however that this review pertains to a student visa: it is a temporary visa for the purposes of study.  The Tribunal notes that the applicant’s breach of condition 8202 was significant leading to the cancellation of her visa.  The applicant did not seek to rectify her enrolment until after receiving notification of the Department’s intention to cancel her visa.  In light of the lack of corroborative evidence supporting her claims as to the circumstances that led to her becoming in breach of the conditions of her Student visa, the Tribunal gives her claims little positive weight. 

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

    DECISION

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

    Justin Owen
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

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

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

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

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

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

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

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

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

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

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

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

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