Rohan Bishnoi (Migration)

[2020] AATA 3474

Rohan Bishnoi (Migration) [2020] AATA 3474 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Rohan Bishnoi

CASE NUMBER:  1931070

HOME AFFAIRS REFERENCE(S):          BCC2019/3220094

MEMBER:Stephen Conwell

DATE:23 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 23 July 2020 at 4:09pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – re-opening of review application – material received before finalisation of Tribunal’s decision – functus officio – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – degree of hardship – psychological report – reasons for breach of condition – difficulties experienced – 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 24 October 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that that the applicant was not enrolled in a registered course and therefore had breached condition 8202 of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant was represented in the review hearing by his authorised migration agent (agent).

4. A copy of the delegate’s decision was provided to the Tribunal by the applicant.

5. The Tribunal exercised its discretion to hold the hearing by telephone. The applicant participated in the telephone hearing on 7 July 2020 to give evidence and present arguments.  The applicant’s agent also participated in the telephone hearing.

6. The hearing was held during the coronavirus (COVID-19) pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick. It also considered the consequences of further delay if the hearing was not to be conducted by telephone. The applicant did not raise any concerns as to conducting the review hearing by phone.

7. 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

8. 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?

9. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a full-time registered course: 8202(2)(a)

   ·subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted: 8202(2)(b);  and

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course at the same level as, or at a higher level than, the registered course for which the visa was granted.

11. As the applicant is not enrolled in a course at the AQF Level 9 (Masters Degree) or Level 10 (Doctoral Degree), subclause 8202(3) does not apply to him.

12. The applicant was granted a Subclass 500 (Student) visa on 5 August 2018 for enrolment in a Bachelor of Information and Communication Technology (B.ICT) at the University of Tasmania for the period from 26 February 2018 to 31 December 2020.  As noted in the decision record, the applicant is not a Defence, Foreign Affairs or secondary exchange student and therefore condition 8202(2)(b) attached to his visa. Condition 8202(2)(b) states that visa holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted.

13. By Notice of Intention to Consider Cancellation (NOICC) dated 17 September 2019, the applicant was advised by the Department of Home Affairs (Department) that information on the Provider Registration and International Student Management System (PRISMS) indicated that his enrolment in the B.ICT course was cancelled by the education provider on 23 April 2019 and as a consequence it appeared he was in breach of condition 8202(2)(a) and that his visa may be cancelled under s.116(1)(b) of the Act.

14. The applicant provided a written response to the NOICC via email on 23 September 2019, which is summarised below:

    ·      the applicant apologised to the Department for ‘downgrading’ his studies. He requested that the decision to cancel his visa be reviewed on  ‘compassionate and compelling grounds’;

    ·      confirmed that he came to Australia for the purposes of studying and attaining an Australian degree;

    ·      he found his studies at the University of Tasmania to be challenging and he felt isolated in Tasmania, having never lived apart from his parents;

    ·      he sought medical advice for ‘hypotension’;

    ·      he failed in all his subjects in the University of Tasmania and on the advice of his parents he relocated to Melbourne where he has relatives and friends;

    ·      he obtained a release letter from the University of Tasmania and relocated to Melbourne where he enrolled in a Bachelor of Tourism and Hospitality Management (B.THM) at AAPoly College;

    ·      he claims that in Melbourne he suffered an assault when he was stabbed by a thief and his phone was stolen. He reported this incident to the police. He felt anxious and depressed after this incident;

    ·      unfortunately the applicant’s poor academic results continued at AAPoly and he realised that his poor results had consequences for his visa conditions;

    ·      since his parents urged him to complete some qualification in Australia, he decided to enrol in a diploma course in the Vocational Educational and Training sector (VET) as he considered that he would be able to pass this level of study;

    ·      he was not aware that such a change of enrolment required that he apply for a new visa, nor did his agent (at the time) advise him of his visa obligations;

    ·      Following his enrolment in the Diploma course, the applicant was involved in a car accident on 09 June 2019. However, he managed to submit his diploma assignments on time.

    ·       the applicant wishes to resume his bachelor’s studies upon completion of his diploma course. He seeks an opportunity to complete his studies in Australia, as failing to do so would be of great disappointment to him and he would face social criticism from his family and friends.

15. The applicant provided the following documents to the Department in support of his response to the NOICC:

    ·      academic transcript from University of Tasmania for Semester 1, 2018;

    ·      Confirmation of Enrolment (COE) for B.ICT - University of Tasmania. Course period: 26 February 2018 – 31 December 2020;

    ·      copy of COE from AAPoly (Melbourne) for B.THM Course period: 16 July 2018 – 9 July 2021;

    ·      medical certificate dated 02 July 2018 from Dr Brian Huang of UniDoctors & Travel Clinic. Referral for blood tests and CT scan of Brain.

    ·      support letter from Victoria Police after the theft incident;

    ·      two undated photographs of property damage to the applicant’s motor vehicle (proof of registration provided) sustained probably as the result of a car accident;

    ·      evidence of car registration in the applicant’s name;

16. The applicant’s agent provided a covering letter to the applicant’s response to the NOICC,  which is summarised below:

    ·      the applicant is a young man (21 years old at the time of writing) who received no advice from his previous migration agent or from educational providers regarding his visa obligations with respect to his studies in Australia. He is but one of many overseas students who have been misguided or poorly advised in this manner;

    ·      the applicant was unaware of the seriousness of his breaching visa conditions until he received the NOICC and sought advice from a migration agent;

    ·      since his arrival in Australia the applicant’s poor performances in his studies has caused him a great deal of stress which has been compounded by the unfortunate incidents he experienced in Melbourne, as recounted in his statement;

    ·      the applicant now clearly understands his visa obligations and will maintain his level of study should he granted an opportunity to continue to studies. He deserves a second chance.

17. The applicant’s response to the NOICC does not dispute his breaching of his visa conditions, however it seeks to explain the circumstances of the breach.

18. The applicant’s oral evidence at hearing is summarised below:

    ·      he first arrived in Australia on 17 February 2018. His visa was granted via a streamlined Visa process;

    ·      he confirmed that the purpose for him coming to Australia was to study;

    ·      before leaving India he had completed a three-year diploma of electronics and communications at Singhania University in Rajasthan;

    ·      he is an only child and his parents have a small farming business in India. He has no family in Australia. He lives with friends in rental accommodation;

    ·      he claims that his father had a drug addiction which impacted on his childhood, but offered no further details or evidence to support this claim;

    ·      when he first arrived in Tasmania he had trouble adjusting to student life, which he discussed with the University’s International student advisor.  Despite these consultations his poor academic results in his first semester prevented him from sitting the semester exams. As a consequence he did not pass any subjects in the first semester of his studies in Tasmania;

    ·      he advised that he did not seek psychological counselling as recommended by his doctor in the medical certificate dated 2 July 2018. He claims that he did undergo blood tests as recommended by his doctor but submitted no evidence of such tests;

    ·      in July 2018 he enrolled in a Bachelor of Tourism and Hospitality Management (B.THM) at AAPoly College, Melbourne. On 7 August 2018 he relocated to Melbourne to commence this course;

    ·      in Melbourne he attended classes and attempted his course assignments however his poor academic results continued and once again he was prevented from sitting for the semester exams; he did not attempt to speak with his teachers or counsellors at AAPoly College to discuss his poor results;

    ·      he remained on shore during the summer break, choosing not to return to India. Instead he worked two days a week on a construction site between December 2018 to February 2019 for ‘cash-in-hand’ payments;

    ·      in March 2019 he enrolled in the VET sector course, Diploma of Automotive Technology, commencing with a Certificate III in Light Vehicle Mechanical Technology. A few weeks later, on 23 April 2019 the applicant’s enrolment in his bachelor studies at AAPoly College was cancelled;

    ·      he confirmed that had not attempted to contact the Department, either before or after his relocation to Melbourne, regarding the visa implications of his change of enrolment to the VET sector. He claims to have received incorrect advice from his migration agent at that time which assured him that he was able to make such a change to his enrolment status;

    ·      his poor academic performances continued and he did not pass the VET sector Certificate III course;

    ·      from March 2019 he worked 10 hours a week as a delivery driver for Uber Eats for a few weeks until he was assaulted and robbed on the evening of 4 April 2019.  Since then he continued to work for Uber Eats for approximately 20 hours a week until his car accident on 9 June 2019. He advised that he suffered no personal injury from the car accident;

    ·      he conceded that during his time onshore he has not successfully completed any semester studies and has not attained any Australian qualification. Nevertheless he seeks a second chance to complete his studies in Australia “to make his parents proud.”

    ·      When asked by the Tribunal if they were any compelling reasons for him to remain in Australia, the applicant’s reply was that he cannot return to India “without achieving anything.”

19. On the evening before the scheduled hearing the applicant appointed a new representative, Mr Purav Bhardwaj, who provided a covering email dated 7 July 2020 (which was received on the morning of the hearing) purporting to attach the following documents:

    ·      Passport

    ·      Decision Record from DHA

    ·      Overseas Diploma of Electronics and Communication Technology

    ·      Transcript – Bachelors from University of Tasmania

    ·      Phycologist (sic) Report

    ·      Medical Certificate

    ·      Theft Incident Proof

    ·      COE- Certificate III in Light Vehicle Mechanical Technology

    ·      COE- Certificate IV in Automotive Mechanical Overhauling

    ·      COE -Diploma of Automotive Technology.

20. In fact the only two documents attached were a) an email response to the applicant from Senior Constable Brown of Mill Park Police Station, providing a report number pertaining to the applicant’s motor vehicle accident, and b) two photos of the applicant’s damaged motor vehicle following that accident. 

21. The Tribunal notes that with the exception of a psychologist report (which did not accompany the email to the Tribunal) and the email correspondence from Senior Constable Brown, the documents referred to in the email dated 7 July 2020 had previously been submitted to the Tribunal.

22. At hearing the applicant’s new agent, Mr Bhardwaj made the following submissions in support of the applicant:

    ·      according to the applicant’s psychologist report  –

    i.claims that he came from a troubled family life and also had difficulty adjusting to life in Australia as an overseas student;

    ii.during his time in Melbourne he was bullied by his roommates in his rental accommodation.

    ·      he was misguided by the incorrect advice of his previous migration agent;

    ·      he has made an honest mistake and deserves a second chance to complete his studies in Australia

23. Mr Bhardwaj did not respond to the Tribunal’s concern that the psychologist report he referred to did not appear on the applicant’s Tribunal file. No request for further time in which to provide the report was made for the Tribunal to consider.

24. On the basis of the evidence before it the Tribunal finalised its decision on 8 July 2020 at 12:01 PM. Later that day at 6:49PM Mr Bhardwaj’s email of 8 July 2020 (and the previously referred to attachments) was uploaded into the applicant’s electronic file. The Tribunal’s prima facie view was that these documents had been received several hours after the Tribunal’s decision had been finalised and the Tribunal was therefore ‘functus officio’. On 9 July 2020 the Tribunal wrote to the applicant via his agent, advising him that having finalised its decision under the Act, it had no power to take any further action on the review.

    Re-opening of this application

25. Upon further investigation the Tribunal determined that Mr Bhardwaj’s email of 8 July 2020 had been received by the Tribunal’s National Registry Mailbox at 11:45AM, approximately 16 minutes before finalisation of the Tribunal’s decision. As previously noted all but two of the attachments to Mr Bhardwaj’s email of 8 July 2020 had been provided to the Tribunal prior to the hearing and had been considered by the Tribunal prior to arriving at its decision. However the two documents not previously tendered to the Tribunal were Mr Bhardwaj’s submission in support of the applicant and a psychological report dated 6 July 2020 prepared by Kiran Chand of Psychologist Plus Pty Ltd. The Tribunal considers both documents to be relevant evidence requiring its careful consideration in the course of its review. For that reason, the Tribunal has agreed to re-open this review application.

26. It follows that in the ordinary course where the applicant’s review is now re-opened, the Tribunal is obliged to consider all of the evidence now before it, including Mr Bhardwaj’s submission and the psychological report dated 6 July 2020.

27. The applicant conceded in evidence that he was not enrolled in a registered course that, once completed, would provide him with a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted. By reason of not being enrolled in a course at level 7 of the AQF or higher and being enrolled at a lower level qualification from March 2019, he did not meet condition 8202(2)(b) of his visa.

28. On the evidence before the Tribunal, the applicant was not enrolled in a course at AQF level 7 or higher from 23 April 2019 to the cancellation of the visa on 24 October 2019, being a period of 6 months.  Accordingly, the applicant has not complied with condition 8202(2)(b).

29. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

30. 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’

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

31. At hearing the applicant confirmed that that the purpose of his travel to and stay in Australia was to study a higher education sector level course at an education provider approved  under the Streamlined Student Visa processing arrangements. As a consequence the applicant was subject to less onerous evidentiary requirements for the grant of his Student visa.  According to the decision record the applicant’s PRISMS records indicate that he has not held enrolment in a course at the higher education sector AQF level 7 since 23 April 2019. From that date he fell in breach of his visa condition 8202(2)(b).

32. Although the applicant failed to complete any of the courses he started, the Tribunal is satisfied that his original intention to travel to and stay in Australia was to study. While the applicant has expressed a desire to continue his studies in Australia, his claims about his future endeavours were general in nature and unsupported by independent evidence. As such, he has not demonstrated a powerful or convincing reason to remain in Australia. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia and gives this factor some weight  towards the visa being cancelled.

    the extent of compliance with visa conditions

1. The applicant has not held enrolment in a course at the higher education sector AQF level 7 since 23 April 2019, in breach of condition 8202(2)(b) The Tribunal considers this to be a serious breach of the applicant’s visa conditions.  The Tribunal therefore gives this factor considerable weight towards the visa being cancelled.

2. Whilst the applicant has submitted two COEs of past enrolments, there is no evidence of his having passed any subjects whilst in Australia. The only academic transcript submitted for semester 1 of 2018 shows that he failed all his subject for that semester. His reply to the NOICC notes his poor academic performance in his bachelor studies at AAPoly College in Melbourne . According to the evidence, the applicant has not completed any course of study at any level, in particular at the higher education level, the level of study for which the applicant’s visa was granted.

3. There is no evidence before the Tribunal that the applicant has is in breach of any other visa conditions however the Tribunal is not satisfied the applicant achieved a reasonable degree of compliance with the study purpose and conditions of the Student visa, prior to its cancellation. The foregoing considerations weigh in favour of cancellation of the visa.

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

4. The applicant claims that he would consider himself a failure and suffer “social criticism” should his visa remain cancelled. However he has submitted no evidence in support of such claims. The Tribunal accepts that the applicant experienced some stress and anxiety whilst adjusting to the demands of studying in Australia. The Tribunal also accepts that the applicant has been involved in two unfortunate incidences since arriving in Melbourne – he was assaulted and robbed and was later involved in a minor road accident. These experiences understandably, would be upsetting and unsettling for him.

5. According to the medical certificate provided by the applicant he attended the clinic on two occasions, 29 June 2018 and 02 July 2018. He received a provisional diagnosis of having “orthostatic hypotension secondarily to dehydration and malnourishment.” It was recommended that he undergo a CT brain scan and the possibility of major depression was discussed. It was also recommended that he engage with “psychological and self-care interventions.”

6. At hearing the applicant claimed to have undergone blood tests as recommended by his doctor but submitted no evidence of this to the Tribunal. He confirmed that he did not undergo a CT brain scan. The applicant confirmed that he had not sought psychological counselling as recommended by his doctor. The applicant’s unwillingness to pursue these medical investigations suggests to the Tribunal that the applicant does not consider these medical issues to be of sufficient concern to warrant further investigation.

7. In reference to the robbery and stabbing incident in Melbourne the applicant provided the Department with a support letter from the Victoria Police stating that he had been a victim of a robbery. The letter also offered the applicant a referral to free counselling should he need additional support. At hearing the applicant confirmed that he did not take up the offer of counselling nor did he seek any additional support available through Victoria Police.

   Psychological report

8. According to the report the applicant was seen by Ms Chand on three consecutive occasions between 30 June – 2 July 2020, inclusive for psychological assessment. As noted in Mr Bhardwaj’s submission, it was he who suggested that the applicant attend these consultations. The Tribunal notes that following his involvement in a motor vehicle accident Victoria Police offered the applicant an opportunity for attending counselling, which he chose not to take up.

9. The report is a summary of the applicant’s history since arriving in Australia and his self-assessment of his emotional response to the challenges of adapting to living and studying overseas.  According to the report the applicant claims:

   ·      he had a difficult childhood with his father being a drug addict with a mental health condition;

   ·      due to his family problems he felt “extremely unsafe and fearful of his life as a child”. He only felt safe at school and he enjoyed his studies. He dreamt of studying in Australia and obtaining Australian qualifications to improve his life and career;

   ·      following consultations in Tasmania with doctor Dr Huang, he was diagnosed with “major depression in July 2018”;

   ·      after relocating to Melbourne the applicant moved into share accommodation however he claims he was bullied by his flatmates and “became paranoid that they were trying to kill him.”

   ·      after he was assaulted and robbed in April 2019, the applicant experienced severe anxiety and post-traumatic stress disorder symptoms. He “started to isolate himself” and withdrew himself from his studies;

   ·      the car accident he was involved in on 9 June 2019 “again made things exceedingly difficult for him.”

10. In the psychologist’s opinion, the applicant’s “mental health and well-being will deteriorate if his student visa is not reinstated as he feels he is unable to faces family and friends in India with a without accomplishing his dreams of obtaining an Australian qualification.”

11. The Tribunal notes that the psychologist report is based entirely on the applicant’s self-reporting following consultations on three consecutive days.  All the consultations took place  within a week of the Tribunal hearing. These consultations took place some nine months after the applicant had been served with a NOICC and then only at the suggestion of his current agent, Mr  Bhardwaj. Further, the applicant’s claims of having a difficult childhood and of being bullied and ridiculed by his Melbourne flatmates were not included in his response to the NOICC or in the brief submission made by his previous agent to the Department. No supporting or corroborating evidence was tendered in respect of these claims.

12. The Tribunal notes that that whilst in Tasmania the applicant did not act upon the recommendation of Dr Huang to seek counselling, nor did he take up offer by Victoria Police of counselling following his car accident in Melbourne.

13. The Tribunal has carefully considered the psychologist report however it attaches little weight to it given the Tribunal’s concerns about the timing of the applicant’s consultations and the degree to which his mental state is self-reported. Also, the Tribunal does not accept that the applicant’s claims of depression, anxiety and stress adversely impacted upon his ability to comply with his Student visa conditions.

14. Whilst the Tribunal has some sympathy for the applicant in regard to the unfortunate incidents that befell him in Melbourne, nevertheless he has not demonstrated a significant level of hardship that would result if his visa is cancelled.  The Tribunal is not satisfied, on the evidence before it, that he or members of his family, would suffer a degree of emotional, psychological or psychiatric hardship that would weigh in favour of not cancelling the visa.

15. The Tribunal accepts the applicant and his family invested money and time in the applicant’s travel to and stay in Australia, including fees lost as a consequence of the cancellation of the applicant’s enrolment and his visa. These consequences are a foreseeable result of the cancellation of the visa.

16. The evidence before the Tribunal does not demonstrate that cancellation of the visa may have caused or may cause the applicant or members of his family a degree of hardship sufficient to persuade the Tribunal to give this consideration weight against cancellation of the visa.

    circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control

17. The circumstances that led to the cancellation of the applicant’s enrolment have been described above. The applicant ceased enrolment in the Tourism and Hospitality Management course (AQF level 7) on 23 April 2019 after enrolling in a lower AQF level course. By doing so he fell in breach subclause 8202(2)(b). In his response to the NOICC, the applicant did not dispute the grounds for cancellation. He conceded that he ceased enrolment in the Bachelor degree course and enrolled in lower AQF level courses “as It was the only easy course which I can (sic) able to pass with all these difficulties”.

    Mr Bhardwaj’s submission

18. Mr Bhardwaj’s submission sets out once more the applicant’s study history and personal circumstances whilst onshore, much of it being substantially consistent with the evidence previously referred to in this decision. The submission does mention the applicant’s keen interest in automotive studies, a claim which is unsupported by any other evidence apart from the fact that the applicant had enrolled in such studies. The submission suggests that the applicant intended to embark upon his automotive studies by enrolling in the basic Certificate III course and progressing eventually to a Bachelor in Automotive Technology.

19. The submission also claims that the applicant experienced “loneliness and depression” after being teased and mocked by his flatmate because “of his strange behaviour”. However the submission makes no mention of the applicant’s claims of having a difficult childhood, although Mr Bhardwaj mentioned this in his closing comments at hearing, by reference to the psychology report. At any rate as previously noted, no supporting evidence or elaboration has been put to the Tribunal in respect of either claim.

20. The submission confirms that it was Mr Bhardwaj who advised the applicant to attend counselling for the purposes of a psychological assessment.

21. Whilst the Tribunal accepts that the applicant had two unfortunate experiences in Melbourne, there is no evidence that either prior to or after these incidents that he sought to engage with either his education providers or with the Department in order to seek a deferment of his studies or  to request a change to his visa status in line with his new enrolments. The applicant might have availed himself of help and advice from his education providers if he was experiencing difficulties with course content and/or adjusting to life as an overseas student. Although the applicant may have experienced two unfortunate events whilst in Melbourne, his poor academic performance preceded these events.  

22. Having regard to Mr Bhardwaj’s submission, the psychological report of Ms Chand and the other evidence before it, the Tribunal is not satisfied the circumstances in which the ground for cancellation arose were exceptional and beyond the applicant’s control. The Tribunal finds that the applicant’s circumstances considered as a whole, weigh in favour of cancellation of the visa.

    past and present behaviour of the visa holder towards the Department

23. According to the decision record, there was no evidence that the applicant had been unco-operative towards the Department. The Tribunal give this some little weight against cancellation of the visa.

    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

24. The Tribunal is mindful that cancellation might lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to ss.189 and 198, respectively. The Tribunal acknowledges that cancellation of the applicant’s visa would result in his being prevented from being granted a range of temporary visas, including Student or Visitor visas, for a period of three years by operation of Public Interest Criterion 4013. It further notes that the applicant would be prevented from applying for many visas onshore apart from a limited range of visas, pursuant to s.48 of the Act. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.

    whether there would be consequential cancellations under s.140

25. The Tribunal is satisfied there are no persons in Australia whose visas would, or may, be cancelled under s.140 as a consequence of the applicant’s visa being cancelled.

    Whether any international obligations would be breached as a result of the cancellation

26. This consideration does not appear to be relevant and the applicant has not made any claims in relation to it.

    Any other relevant matters

27. The Tribunal finds that there are no other relevant matters.

    Conclusion

28. The Tribunal is not satisfied the unfortunate incidents and personal challenges the applicant may have encountered are sufficient reason for the visa not to be cancelled. The Tribunal recognises that the cancellation of the visa is a significant matter, but having considered the evidence individually and cumulatively, the Tribunal is not persuaded that there are grounds upon which it should exercise its discretion to not cancel the visa.

29. On balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Stephen Conwell
    Member

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.