RC (Migration)

[2019] AATA 4735

RC (Migration) [2019] AATA 4735 (30 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jenis RC

CASE NUMBER:  1707486

HOME AFFAIRS REFERENCE(S):           BCC2017/699312

MEMBER:Justin Owen

DATE:30 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2019 at 4:53pm

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 travel and stay – no attempts to secure study rights – partner resides in Australia on Student visa – mental health issues – 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 3 April 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 Nepal born 8 December 1987.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 9 December 2015 and was subject to condition 8202.  The visa had a stay period with a stay period until 30 September 2017.  On 17 March 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 his visa, as he had ceased to be enrolled in a registered course between 24 September 2016 and 23 March 2017.  The applicant responded to the NOICC on 31 March 2017.  On 3 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his 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 3 October 2019 to give evidence and present arguments.

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

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 3 April 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 between 24 September 2016 and 23 March 2017.  At the time of the delegate’s decision of 3 April 2017 the applicant therefore had not been enrolled for a total of about 6 months. 

11. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 24 September 2016 and 23 March 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 applicant in response to the Tribunal’s questions replied he had no reason other than study to travel to and stay in Australia. 

16. The Tribunal notes the applicant’s written submission/NOICC response of 31 March 2017 (T1, Folio. 42-45) that he provided to the Tribunal.  In the submission the applicant noted he had arrived in Australia in October 2009 ‘to acquire higher education’ along with the possibility of learning the cultures of a new country.  He wrote that he commenced his education in a Diploma of Information Technology at Central Coast and, despite his loneliness and homesickness, managed to progress with satisfactory results.  He wrote that he completed a Diploma in Information and Technology (Networking) at the Australian College of Management and Technology on 16 July 2013.  He subsequently enrolled in a Bachelor of Information Technology at Federation University.      

17. The applicant in both his written submission and in oral evidence to the Tribunal stated that his academic studies then declined due to the death of his grandmother which led to increasing mental health issues.  He writes that Federation University were not pleased with his course progress and excluded him.  He claims he attempted to defer his studies but Federation University instead cancelled his enrolment.

18. The applicant writes that he then realised the importance of studying a Business course to assist him in the future run his family’s medical centre.  He writes he then enrolled in a Bachelor of Business and was granted his current 573 Student visa – the subject of this review – on 9 December 2015.  The applicant writes that in that same month his aunt and his father became ill which again impacted upon his mental health and ability to study.  The Tribunal notes the medical evidence pertaining to his aunt’s and his father’s health that the applicant has provided the delegate and Tribunal and accepts his claims both were in ill-health.     

19. The applicant claimed he suffered from mental health issues through 2016 with an improvement later in the year when his aunt’s health began to improve as well as the return to Australia by his sister in February 2017.  He wrote in his submission dated 31 March 2017 that he was in a good state mentally and his main goal was to complete his studies with a current COE from Polytechnic Institute Australia to study a Bachelor of Business program with classes resuming on 2 April 2017. 

20. At the hearing on 3 October 2019 the Tribunal asked the applicant about his progress in studying since his NOICC response.  The applicant claimed that his enrolment at the Polytechnic Institute Australia was cancelled by the provider a week or so after his Student visa was cancelled on 3 April 2017 due to the cancellation of his Student visa.  The applicant provided no corroborative evidence from the provider of these actions despite the Tribunal’s request.   

21. The applicant stated to the Tribunal that he had not enrolled or completed any courses since the cancellation of his Student visa in April 2017.  He said this was because he didn’t hold a Bridging visa and had no study rights.  The applicant discussed how the Department failed to provide him with a Bridging visa following the cancellation of his Student visa and he only finally obtained a Bridging visa on 1 March 2019.  He claimed to have been informed that the Bridging visa would be ‘automatically’ granted to him.  The applicant provided a copy of the grant notice he eventually received in 2019 (T1, Folio. 141-142).  The applicant claimed he was unable to enrol and study following the cancellation of his Student visa in April 2017 because he had no visa allowing him to enrol and study. 

22. The Tribunal accepts the applicant’s evidence that he was not granted a Bridging visa until March 2019 and that he was not lawfully permitted to study whilst he was without a visa.  The Tribunal accepts his current Bridging visa E furthermore does not permit him to study.  Nevertheless the Tribunal does not accept the applicant’s argument that the Department’s failure to grant him a Bridging visa somehow mitigates his failure to pursue any education and study opportunities the last two and a half years.  The applicant states he believed he was had been granted a Bridging visa but the Tribunal, given the applicant has held multiple visas whilst in Australia, finds the claim unconvincing.   Applicants have an obligation to update the Department and inform them of any changes to their circumstances.  The applicant had every opportunity to approach the Department and inform them of his visa status and the fact that he had received no notification of any grant of a Bridging visa.  Furthermore, if the applicant had an interest in studying he could have approached the Department and applied for study rights.  Any request or inquiry to the Department to attach study rights to his visa would have drawn the Department’s attention to his unlawful status and his lack of a valid Bridging visa.  The obligation in the Tribunal’s opinion remains with the applicant to keep himself informed of his visa status.  The applicant could have approached the Department and applied for study rights on his Bridging visa if he had a desire to study.  The Tribunal notes that the applicant has stated that their claimed mental health issues had dissipated by the time the applicant had enrolled in a Bachelor of Business course and was due to commence in April 2017.  If the applicant had a genuine interest in study then it was available to the applicant to approach the Department.  Instead the applicant failed to do so and has not enrolled or completed any courses since the cancellation of his Student visa in April 2017.   

23. The Tribunal furthermore notes from the delegate’s decision record the applicant provided that the PRISMS records indicated that the applicant obtained his COE in the Bachelor of Business course at Polytechnic Institute Australia on 24 March 2017 – after he received the NOICC from the Department.  The applicant claims he tried enrolling prior to this but there is no corroborative evidence before the Tribunal to support this claim.  The Tribunal gives the claim no positive weight.  The Tribunal is of the view the applicant enrolled in the course at Polytechnic Institute Australia after receiving the NOICC.

24. The Tribunal notes the applicant has recently married (T1, Folio. 140) but notes from the applicant’s testimony that his wife is also from Nepal and the holder of a temporary Student visa. She does not have permanent residency.   The applicant’s wife is free to return to Nepal with the applicant if they so desire.  The Tribunal does not consider the applicant’s marriage and the presence of his wife represents a compelling reason for the applicant to remain in Australia on a Student visa.   

25. The Tribunal acknowledges the applicant’s claims that he has a strong desire to complete a degree in Information Technology so he can return to Nepal and be well equipped to eventually manage his family’s business.  He pointed out at the hearing that he is just two semesters away and 8 credits from completing a Bachelor if Information Technology.  The Tribunal however considers that the applicant’s failure to make enquiries as to a Bridging visa (and in fact regularising his immigration status) for over 18 months after the cancellation of his Student visa and the fact that on the evidence he only sought enrolment in his final degree after receiving the NOICC from the delegate in 2017 causes the Tribunal to doubt his commitment to future study.  The Tribunal on the evidence before it has doubts as to both the purpose of the applicant’s travel to Australia and whether the applicant has a compelling need to remain in Australia.  The Tribunal is perplexed as to why the applicant failed to either confirm his visa status or seek study rights for such a significant period of time since the cancellation of his visa if he retains such a strong desire to complete his higher education studies.   On the evidence before it 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. 

26. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for six months to be significant.  The Tribunal notes from the decision record the applicant provided that he arrived in Australia ten years ago and has held multiple visas.  The Tribunal considers he was experienced with the visa requirements and obligations for a visa holder, even if he was utilising an external agent to assist with migration matters.  The Tribunal notes the applicant in response to the Tribunal’s questions conceded he was aware that not being enrolled in a registered course of study would impact upon his eligibility to continue to hold a Student visa.  The Tribunal is of the opinion the applicant was well aware he was not complying with the conditions of his visa.  The Tribunal has furthermore considered the applicant’s failure to be the holder of any visa between the cancellation of his Student visa and the granting of a Bridging visa E in March 2019.  The applicant said he assumed he has a Bridging visa E based on information that had been provided to him and only discovered he was unlawful when informing the Department about his marriage in early 2019.  The Tribunal finds this claim dubious and notes the applicant had an obligation to keep himself informed and updated as to his immigration status.  Whilst the applicant did inform the Department about his marriage, the Tribunal finds it curious that he made no attempts to secure study rights (if he assumed he was holding a BE with no study rights) and made no attempts to secure any documentation confirming his Bridging visa and status from the Department for almost two years.  The Tribunal considers the applicant’s non-compliance with his visa conditions to be considerable.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.  

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

28. The Tribunal notes that the applicant’s partner and wife is also currently residing in Australia on a Student visa from Nepal.  The applicant married his wife in February 2019.  The Tribunal has considered the degree of hardship that may be caused to her.  Given the applicant’s wife is not an Australian citizen or permanent resident and is required to depart Australia at the conclusion of her studies, the Tribunal considers the hardship to be limited.  The applicant furthermore claimed in oral evidence that his ultimate plan was to return to Nepal (the Tribunal assumes with his wife) where he would help run his family’s medical centre business.  The Tribunal nevertheless concedes there would be a limited degree of hardship caused to his wife should the applicant return to Nepal.  The Tribunal concedes that should the applicant’s wife depart Australia with him it may have a detrimental impact upon her own continuing studies in Nursing.  Mitigating this however is the fact that if she so desires the applicant’s wife can remain in Australia to complete her studies or enrol in a further course offshore.  There is no reason before the Tribunal why the applicant’s wife would not be able to recommence her studies in Nepal if she decided to return with her husband the applicant.   

29. The Tribunal does accept there is a degree of hardship imposed upon the applicant’s wife in relation to her studies.  The applicant’s wife does, according to the applicant’s testimony, have a Student visa that allows her to remain in Australia enrolled in a course of study for a further two years.  The Tribunal notes however that she would in all likelihood be able to utilise the studies she has already completed as advanced standing in a future enrolment.  She can seek enrolment in a course of study in Nepal if she returns offshore with her husband.  The Tribunal concedes there is a limited degree of hardship but does not consider it to be either significant or onerous. 

30. The Tribunal accepts that, should the applicant’s wife decide to remain in Australia to complete her studies rather than return to Nepal with her husband there may be a degree of hardship for the applicant’s wife on a financial and emotional perspective.  The applicant stated that since May 2019 he has worked part-time in IT support whilst his wife works in the hospitality industry part-time.   They currently live with three other people at a property in Strathfield.  The Tribunal accepts there will be a degree of financial hardship for the applicant’s wife if the applicant is compelled to depart Australia.  The Tribunal however notes any hardship can be mitigated should the applicant return to employment offshore and provide his wife with financial support. 

31. The Tribunal accepts that there would be a degree of emotional hardship for the applicant’s wife should he depart Australia.  Mitigating this is the fact the applicant’s wife can choose to depart Australia and return to Nepal with the applicant if she so wishes.  The applicant can also continue to provide his wife with emotional support through contact through a wide range of technologies including telephone, text and social media.  The Tribunal considers the emotional hardship faced by the applicant’s wife can be mitigated.     

32. The Tribunal considers the applicant’s wife can make an informed choice whether to return to Nepal with the applicant should his visa be cancelled.  The Tribunal considers there is a degree of hardship but the Tribunal does not consider it to in any way be onerous.  The Tribunal furthermore notes that when her Student visa expires the applicant’s wife will be required to nevertheless return to Nepal. 

33. The applicant stated that cancellation of his visa would have also have an adverse impact upon his family.  He said it would have an adverse emotional impact upon them and they were planning to retire from full-time employment in a year’s time.  He stated that he needed to complete his IT degree in order to take over the family business.  The Tribunal accepts that the applicant’s parents will be disappointed if the applicant’s Student visa is cancelled and he is unable to complete further studies in Australia.  That is understandable given the sacrifice they have made to further their son’s education. Given the applicant’s parents according to the applicant visited Australia in 2017/2018 the Tribunal is of the opinion they would be aware of the applicant’s visa issues and the possibility of his return to Nepal prior to the completion of further studies.  Whilst recognising the disappointment, the Tribunal does not consider the hardship faced by his parents and extended family with the cancellation of his Student visa to be onerous or significant.  On the evidence before it relating to the degree of hardship that may be caused to the applicant’s family, the Tribunal weighs this factor in favour of cancelling the visa. 

1. The Tribunal has considered the degree of hardship that may be caused to the applicant himself.  The applicant stated at the hearing he would be left without a degree and would not be able to earn a proper living should his visa be cancelled.  He stated that a decade in Australia would have been wasted should his visa be cancelled.  The Tribunal does not accept the applicant’s arguments concerning hardship and his own situation.  The Tribunal notes that the applicant has previously completed a Diploma and the applicant is not precluded from commencing or completing further studies off-shore. 

2. The Tribunal found the applicant to be an intelligent and articulate individual and is not convinced any future educational progress relies entirely upon the applicant remaining in Australia.  The Tribunal acknowledges the applicant would prefer to remain in Australia to study but does not consider this a compelling reason for his visa not to be cancelled.  The Tribunal furthermore understandably has some doubts as to his commitment to further studies in Australia given the fact that he last enrolled in a course of study over two and half years ago and made no attempt to regularise his migration status until early this year.  The Tribunal considers the applicant has the capability to study, it has reservations however as to his commitment.           

3. At the hearing when discussing hardship, the applicant did not specifically raise the state of his mental health and any hardship his departure from Australia might have upon his mental and psychological heath.  The Tribunal has nevertheless considered the matter in the context of hardship.  The Tribunal notes that in his previous NOICC response that he provided to the Tribunal, the applicant claimed that without the completion of his studies he had concerns for his future.  He had asserted that he had suffered mental health issues and that these issues would return and be exacerbated if his visa was to be cancelled.   The Tribunal notes the medical reports the applicant submitted from psychologist Dr Jagdish Dua dated 20 August 2015 (T1, Folio. 81) who stated that assessment showed the applicant was suffering from severe anxiety and moderate stress and mental health social worker Zaid Crouch dated 24 March 2017 (T1, Folio. 83-89) who held an assessment with the applicant that day and after testing found the applicant was experiencing mild levels of depression and anxiety above the mean for the population.  The Tribunal notes on the evidence before it that the applicant sought Zaid Crouch’s assistance after he had received the NOICC from the Department.  In response to the Tribunal’s questions the applicant confirmed he had not undertaken any further mental health treatment since this time.  There is no mental health plan.  He stated he was still uncomfortable talking about his aunt’s death (with her illness having been a claimed trigger of his mental health issues).  He stated that since he is married he has someone to support him in this area.  On the evidence before it the Tribunal does not consider the applicant’s mental health would be adversely impacted by his departure from Australia.  He has not received or sought any treatment on the evidence before the Tribunal since 2017.  If he were to return to Nepal he can seek assistance from his family including his parents.  The Tribunal accepts the applicant has previously sought assistance for the claimed state of his mental health.  In the absence of further corroborative and more recent evidence pertaining to the applicant’s mental health, the Tribunal finds that returning to Nepal will not cause any particular hardship to the applicant via an adverse impact on his mental and psychological health.  On the evidence before it relating to the degree of hardship that might be caused to the applicant, the Tribunal weights this factor in favour of cancelling the visa. 

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

5. The ground for cancellation arose due to the failure of the applicant to remain in a registered course of study between 24 September 2016 and 23 March 2017, a period of about six months. The applicant conceded to the Tribunal he was not enrolled during this period.  

6. The applicant provided the Tribunal with his written response to the NOICC in 2017 along with a range of supporting documentation.  The applicant provided his formal response to the NOICC; a letter of support from his sister who he lived with for a period in 2016 whilst she was studying in Australia; medical evidence and reports pertaining to the illnesses of his aunt and his father; medical information pertaining to the death of his aunt in August 2017; confirmation of his March 2017 enrolment in a Bachelor of Business program at Polytechnic Institute Australia and psychological reports from Dr Dua in August 2015 and Zaid Crouch in March 2017. 

7. At the hearing of 3 October 2019 the applicant outlined to the Tribunal the circumstances of the breach.  He said he was not enrolled in a course of study between September 2016 and March 2017 due to mental health issues.  He stated his mental health issues first emerged in early 2015.  He said his grandmother has passed away that year and his mother’s sister, his aunt, was diagnosed with cancer in December 2015.  In his written submission the applicant said he was particularly close to his aunt as she had raised him for the first few years of his life whilst his parents were studying medicine in the Ukraine.  He wrote that his aunt had three daughters and no sons so he was practically her youngest son.  He wrote that his aunt’s youngest daughter lived with him in Australia whilst his aunt was sick which made his life even more difficult.  He said he was having to provide emotional and financial support to his aunt’s daughter whilst also encountering his own mental health issues. 

8. The applicant claimed at the hearing to the Tribunal that he became unmotivated and anxious due to this burden.  He confirmed in oral evidence that he did not however seek a deferral from his studies in 2016.  His father’s own health problems he claims further exacerbated his issues.  The applicant claims his depression and mental state were to blame for him failing to remain enrolled.  The Tribunal noted in his written submission the applicant had also raised the impact of the 2015 earthquake in Nepal on his frame of mind.  The applicant stated that whilst this was not as significant issue, collectively it had all impacted upon his state of mind. 

9. The Tribunal accepts the applicant was particularly close to his aunt and accepts that her serious illness had an adverse impact upon him.  In the context of their relationship that is understandable.  The Tribunal considers the applicant is being truthful when he discusses the close relationship he enjoyed with his aunt (who subsequently deceased) and can sympathise that her serious illness caused him genuine worry, particularly given he was living with her youngest daughter in Australia at that time.  The Tribunal also accepts he was concerned about his father’s health.  The Tribunal does not however accept that this situation precipitated a situation whereby the applicant was unable to either maintain an enrolment or seek a deferral of his studies. The Tribunal notes that the applicant sought mental health treatment in March 2017 after receiving the NOICC from the Department.  The only other evidence of the applicant seeking professional medical assistance for any mental health issues before the Tribunal is Dr Dua’s correspondence from August 2015 where Dr Dua supports the seeking a deferral of the applicant’s then studies for the second half of 2015.  There is no evidence before the Tribunal that the applicant sought any medical assistance for his mental health during the period the applicant was not enrolled in a registered course of study until after receiving the NOICC and just prior to his visa being cancelled by the delegate.  The Tribunal acknowledges his claim that whilst his sister was in Australia in 2016 she provided him with the ‘counselling’ he required but notes this was not professional medical support. The applicant furthermore in his testimony to the Tribunal conceded that he has not received any further mental health treatment since the March 2017 appointment. On the evidence before it the Tribunal is not satisfied that the applicant’s mental health issues precluded him from either maintaining an enrolment or, if he had been enrolled, seeking a deferral of his studies.  The Tribunal notes the applicant did, according to his written submission, attempt to defer his studies in 2015 whilst enrolled at Federation University so the Tribunal considers the applicant was aware of the deferral process available to students that may be facing issues in maintaining their studies.  He however has claimed the provider cancelled his enrolment before he could seek a deferral.  The Tribunal acknowledges that not all individuals suffering from mental health issues engage the assistance of medical professionals.  The Tribunal accepts that the applicant was facing a degree of stress and concern due to the health issues facing his family and from assisting his cousin whilst she came to terms with her mother’s serious illness.  The Tribunal is not however satisfied that this situation adequately explains the applicant’s significant period of non-enrolment.  The applicant’s subsequent failure to obtain an enrolment over the following two and a half years – notwithstanding the applicant’s issues with obtaining a Bridging visa – speaks to the Tribunal of the applicant’s desire and motivation to continue his higher education studies in Australia.  The Tribunal notes in the NOICC response he provided to the Tribunal his claim to be ‘motivated and free from mental health issues and have directed all my energy towards the completion of my education’ (T1, Folio. 128).  The lack of any effort until 2019 to confirm he was actually granted a Bridging visa and the lack of any attempt to obtain study rights and a new enrolment over such a period speaks to the applicant’s commitment to reengage fully with his studies in the Tribunal’s opinion.  On the evidence before it relating to the circumstances in which the ground for cancellation arose, the Tribunal weights this factor in favour of cancelling the visa.      

10. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   

11. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   The Tribunal notes the applicant responded to the Department’s s.119 letter and gives this some positive weight.  The Tribunal however has concerns with the applicant’s failure to contact the Department and confirm his visa status between the cancellation of his Student visa in April 2017 and informing the Department of his marriage nearly two years later.  Whilst the Department was arguably remiss in not granting a Bridging visa at the time of the cancellation, the Tribunal notes the obligation remains with the applicant to ensure they regularise their migration status.  The applicant claims he was told by the Tribunal when applying for review that he would be granted a Bridging visa.  The Tribunal however notes that ultimately the responsibility for ensuring the applicant was actually granted a Bridging visa following the cancellation of his Student visa remains with the applicant.  The Tribunal notes the applicant has been in Australia since 2009 with some experience of the Australian visa system.  Given the importance of the matter at and for the applicant, the Tribunal finds it unfathomable that there is no evidence of any contact between the applicant and the Department for almost two years.  The Tribunal notes as a result the applicant remained in Australia on an unlawful basis for almost two years.   On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa. 

12. 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.

13. 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.     

14. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant, if he 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 his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him 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.

15. Towards the conclusion of the hearing the Tribunal noted the PRISMS record of 25 June 2019 and provided the applicant with a copy of the record.  The Tribunal put the PRISMS record to the applicant under s359AA and noted that the record stated the Bachelor of Business (Marketing) that he enrolled in on 27 March 2017 and was due to run until 22 March 2020 has been cancelled; that the Bachelor of Business he enrolled in in November 2015 was cancelled for non-payment of fees in March 2016 and for non-commencement of studies in November 2015;  that the last course he completed was a General English course in September 2016 and he was not currently holding a Certificate of Enrolment in any course of study.  The Tribunal explained the relevance and consequences of the information: namely that it was relevant to the Tribunal’s consideration of the extent of the applicant’s compliance with any conditions subject to which his Student visa was granted - and invited the applicant to give comments on or respond to the information at the hearing or in writing.  The Tribunal noted the issues had already been discussed in some detail at the hearing.  The applicant said he would like to rely upon what he had stated and submitted at the Tribunal hearing.  The Tribunal invited the applicant to submit any further information it wished the Tribunal to rely upon by 14 October 2019.  The applicant made submissions on 10 October and 14 October 2019.  No further submissions have been made since that time.  The Tribunal’s consideration of the matters and the applicant’s submissions appears throughout this decision record.

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

    DECISION

17. 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.