Sharma (Migration)

[2019] AATA 3466

Sharma (Migration) [2019] AATA 3466 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ashutosh Sharma

CASE NUMBER:  1707648

HOME AFFAIRS REFERENCE(S):          BCC2017/606004

MEMBER:Frank Russo

DATE:2 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2019 at 11:58am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – failure to attend scheduled hearing – application dismissed – reinstatement of application sought – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-enrolment – reasons for non-compliance – life stressors – responsibility of visa holder – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 362B, 362C
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 31 March 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 delegate cancelled the visa on the basis that the applicant did not meet the requirements of his Student visa as he was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 18 June 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Palwinder Singh, who is the applicant's former manager. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

4. 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

5. 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?

6. 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).

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

8. The applicant is a 26-year-old Indian national. With his application for review, the applicant provided the Tribunal with copies of the Department’s decision and notification letter. In addition the applicant provided the Tribunal with a copy of his passport.

9. The application was listed for hearing on 9 May 2019 at 11am. Following the non-appearance of the applicant, the Tribunal dismissed the application under s.362B(1A) of the Migration Act 1958 (Cth).

10. The applicant sent the Tribunal an email dated 22 May 2019, requesting reinstatement of the application, attaching a medical certificate from J Medical & Cosmetic Centre, dated 10 May 2019, certifying that the applicant has a medical condition and was unfit for work from 8 to 11 May 2019 inclusive, together with a tax invoice for medical services and a prescription for Voltaren.

11. On 24 May 2019 the Tribunal reinstated the application under s.362B(1C) of the Act and the application was listed for hearing on 18 June 2019.

12. Following the hearing, the applicant provided the Tribunal with copies of the following documents on 30 June 2019 and 15 July 2019:

    a.Letters of offer from Australis Institute of Technology and Education (AITE) for the Advanced Diploma of Leadership and Management, dated 28 June and 9 July 2019;

    b.Confirmation of Enrolment for the Advanced Diploma of Leadership and Management at AITE, created on 11 July 2019;

    c.Letter from Managing Director, SNJ Recruitment Pty Ltd, dated 20 June 2019;

    d.Document from SBI, dated 29 June 2019, certifying the bank balance of Ms Radhika Nayyar;

    e.Affidavit of Ms Radhika Nayyar, dated 29 June 2019;

    f.Certified copies of medical documents from Amandeep Hospital, Pathankot, India, as follows:

    i.Discharge Summary from the Department of Cardiology for Mrs Rajesh Kumari, for discharge on 22 January 2016;

    ii.‘Investigation Summary’ dated 15 January 2016;

    iii.Notes of Dr Sonali Sharma;

    iv.Discharge Report; and

    v.Document containing ‘Treatment Advice on Discharge’.

13. The Tribunal has had regard to the above documents in making its decision. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

14. The applicant gave evidence at the hearing that he first arrived in Australia on 31 March 2014 for the purpose of studying. He was enrolled in the Diploma of Business at Zenith Business Academy. The applicant told the Tribunal that he commenced this course, but did not complete it. He stated that when he first started studying this course ‘enrolment was new’ for him and his English language skills were not at a good level, and consequently he struggled with these studies.

15. The applicant told the Tribunal that he next enrolled in an Advanced Diploma of Management at AITE in 2015. He stated that he completed eight to nine months of this course, which he said was more than half-way through this qualification, when his mother became ill. He stated that he stopped studying in about February 2016.

16. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

17. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that it was an accurate reflection of his enrolment history.

18. According to the applicant’s PRISMS record he has been enrolled in the following courses:

    a.Diploma of Business, from 23 June 2014 to 19 December 2014, which according to his PRISMS record he finished;

    b.Advanced Diploma of Business from 9 February 2015 to 5 February 2016, which was cancelled on 20 February 2015 due to non-commencement of studies;

    c.Advanced Diploma of Management, from 15 March 2015 to 15 June 2016, which was cancelled on 24 March 2016 due to a change in course in the same sector;

    d.Advanced Diploma of Leadership and Management, from 24 March 2016 to 20 September 2016, which was cancelled on 25 July 2016 due to ‘Unsatisfactory course progress’;

    e.Bachelor of Business (Information Systems), from 29 March 2016, but which was cancelled on 15 March 2016 for non-commencement of studies;

    f.Diploma of Leadership and Management, from 20 March 2017 to 14 September 2018, which was cancelled; and

    g.Advanced Diploma of Leadership and Management, from 25 September 2018 to 23 March 2020, which was cancelled for non-commencement of studies.

19. Although the applicant indicated that this record was correct, later in the hearing he clarified that he did not complete, and was not awarded, the Diploma of Business from Zenith Business Academy. This is despite his PRISMS record indicating that he ‘finished’ the course. The applicant confirmed that although he got to the end of this course, due to his poor English skills at the time he did not pass this course and was not awarded the diploma. The applicant also clarified that his enrolments in the Diploma of Business, Advanced Diploma of Business and Bachelor of Business (Information Systems) were a package course. He did not commence studies towards the Bachelor of Business as he instead became enrolled in the Advanced Diploma of Leadership and Management at AITE.

20. The applicant confirmed that at the time of the hearing he was not enrolled in a registered course. He however stated that at the time he filed his application for review with the Tribunal he enrolled in the Diploma and Advanced Diploma of Leadership and Management at Australasian Institute of Management. The applicant stated that he studied this course for five to six months with his own funds, however after that he ran out of money. He was asked by the college to pay his fees and he was unable to do so. The Tribunal notes that from the applicant’s PRISMS record and the Confirmation of Enrolment which is on the Department’s file, he was enrolled in this course from 20 March 2017, just prior to the Delegate’s decision. The Delegate’s decision also refers to this enrolment.

21. At the hearing the applicant confirmed that he was not enrolled in a registered course of study from 25 July 2016 to 19 March 2017 and had failed to maintain his enrolment in accordance with condition 8202. The applicant confirmed that he accepts that there are therefore grounds for cancellation of the visa.

22. The Tribunal raised with the applicant that in his response to the Department’s Notice of Intention to Consider Cancellation (NOICC) of the visa, which the applicant provided to the Department on 30March 2019, he stated that he did not believe there were grounds for cancellation as there were circumstances which were beyond his control. The applicant told the Tribunal that the response provided to the Department had been prepared by a lawyer from whom he had sought advice, and that he accepts that he was not enrolled between 25 July 2016 and 19 March 2017. He also confirmed that he understood that consideration of the circumstances which resulted in the breach is a matter for consideration as part of the exercise of the discretion to cancel the visa.

23. On the evidence before the Tribunal, the applicant was not enrolled in a registered course between 25 July 2016 to 19 March 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

24. 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

25. The applicant told the Tribunal that the purpose for his travel and stay in Australia is for the purpose of studying to obtain a tertiary qualification. The applicant stated that he had been a bright student in India, however while he was completing his secondary school education he became ill as a result of problems with his kidneys, which persisted for two years. He stated that following high school he undertook some diplomas by correspondence while he was sick at home. He then spent approximately six to seven months preparing for an IELTS examination, which he passed in December 2012. The applicant stated that he was not able to travel to Australia to study at that point because he wasn’t able to organise the money needed. His father subsequently retired and took out a loan, which resulted in sufficient funds for his studies. The applicant stated that it took approximately one year for his family to organise the funds to allow him to study in Australia.

26. As noted above, the applicant confirmed that although his PRISMS record indicates that he ‘finished’ the Diploma of Business at Zenith Business Academy, he was not awarded this diploma, and he confirmed that since arriving in Australia he has not been awarded any certificates or qualifications. He stated that he wishes to obtain at least one qualification before returning to India.

27. When asked about his plans if his visa is not cancelled, the applicant stated that he plans to enrol in the Advanced Diploma of Leadership and Management again. In the applicant’s response to the Department’s NOICC, he stated that he planned in the future to enrol in the Bachelor of Business at University of Western Sydney (UWS). When questioned about this at the hearing, he indicated that this is no longer his plan as such a course is expensive and he cannot now afford to study at UWS. He stated that he doesn’t want to return to India without obtaining any certificates, so wishes to have the opportunity to complete the Advanced Diploma of Leadership and Management.

28. The applicant told the Tribunal that he is now in a position to fund his studies, indicating that a ‘cousin brother’ of his is willing to pay course fees of $9,000. The applicant indicated that he could provide evidence of this and that he had opened an account for this purpose two days before the hearing.

29. Following the hearing the applicant provided copies of a document from SBI, dated 29 June 2019, certifying the bank balance of Ms Radhika Nayyar and an affidavit from Ms Nayyar, dated 29 June 2019. In her affidavit Ms Nayyar declares that she is the cousin of the applicant and that she will pay his tuition fee and is ready to bear his living costs as his family’s financial condition is not good, due to his mother’s health and related expenses. The applicant also provided letters of offer from AITE dated 28 June and 9 July 2019 and a Confirmation of Enrolment for the Advanced Diploma of Leadership and Management at AITE, created on 11 July 2019.

30. Whilst the Tribunal notes these documents, it is concerned that the applicant enrolled in an Diploma and Advanced Diploma of Leadership and Management in March 2017, shortly after the Department issued a NOICC. Although the applicant gave evidence that he studied this course for about five or six months before he could no longer fund his studies, he was unable to provide a satisfactory reason for why he had not re-enrolled in a course before this date and this enrolment history suggests that the applicant enrolled in this course primarily for the purpose of avoiding the cancellation of his Student visa, rather than out of a genuine intention to recommence his studies following an almost eight-month gap. At the hearing the Tribunal questioned the applicant as to whether under the conditions of his Bridging visa he is able to study. He indicated that in February 2019 he obtained a Bridging visa E and that prior to that he was not aware that he needed a Bridging visa. He confirmed that under his Bridging visa there are no conditions preventing him from studying, which raises questions as to why the applicant delayed obtaining a further enrolment until his application was scheduled for hearing.

31. The applicant told the Tribunal that for the past two years he has not worked, and that two weeks before the hearing he had found a job as a kitchen-hand. When asked how he has been supporting himself in this time he responded that he lived with a friend of a friend for a year, who supported him with the cost of rent. He stated that he had worked at an egg factory until his mother became ill, where he worked 20 hours per week. He told the Tribunal that he was sacked from this job because he wasn’t concentrating at work, as a result of the problems with his mother’s health.

32. The Tribunal noted that the medical certificate provided by the applicant on 22 May 2019 indicated that the applicant was not fit for work between 8 to 11 May inclusive. The Tribunal questioned whether the applicant had been working at the time and why the certificate was worded in such a way. The applicant stated that he was not working at the time and that the wording of the certificate was the wording offered by the general practitioner who provided it. The Tribunal accepts this and accepts that there is no evidence before it that the applicant has worked in Australia, other than his work at the egg factory and his kitchen-hand role which he obtained two weeks prior to the hearing.

33. Having considered the above evidence, the Tribunal finds that there is no evidence of the applicant wishing to remain in Australia for a purpose other than to study. Accordingly, the Tribunal gives this matter some weight against cancelling the visa.

    The extent of compliance with visa conditions

34. The applicant conceded at hearing that he did not comply with condition 8202 of his Student visa by not maintaining enrolment in a registered course of study from 25 July 2016 to 19 March 2017, a period of almost eight months. He told the Tribunal that other than this he has not breached any other conditions of his visa, including the work limitation. There is no evidence before the Tribunal of other breaches of the conditions of his Student visa, however given the period of almost eight months over which the applicant did not comply with Condition 8202 (enrolment), the Tribunal gives this matter only little weight against cancelling the visa.

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

35. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated that the purpose for his travel to Australia is to study. He stated that if his visa is cancelled he believes he will not have further opportunity to study. His indicated that his father does not have any money and it would be difficult for him to study at his age in India. He indicated that he will need to support his family in the future, including his mother, who requires further treatment as her health problems are ongoing, as well as assisting his sister, stating that she is 25 and will be married soon and a lot of money is spent on arranged marriages in India. He stated that he believes that if he is given the opportunity to complete a course in Australia, it will allow him to obtain a good job in India, however without this he will struggle as there is too much competition for jobs.

36. In addition he indicated that he has a girlfriend in India, who he intends to marry when he returns. He indicated she had just passed a test to become a lecturer and if he were to return to India without having completed any studies, his girlfriend’s father won’t agree to the marriage.

37. The Tribunal is satisfied that the applicant would experience some hardship as a result of the cancellation of the visa, including a further delay in his ability to obtain a tertiary qualification in Australia, which is the purpose for his travel and for him remaining in Australia. I give this some weight against cancelling the visa.

    Circumstances in which ground of cancellation arose

38. The applicant told the Tribunal that he didn’t pass his initial studies in 2015, for the Diploma of Business, and which was intended to progress to his enrolments in the Advanced Diploma of Business and Bachelor of Business (Information Systems). He stated that he was very depressed when his first Confirmation of Enrolment was cancelled. He went to see a lawyer at this time, who assisted him to obtain enrolment with a different education provider. He told the Tribunal that he subsequently enrolled in the Advanced Diploma of Business at AITE in 2015. He said he studied this course for approximately eight to nine months, following which his mother became ill and he became depressed and anxious and the money to fund his studies stopped coming through. He stated that his mother had been suffering diabetes and high blood pressure and in January 2016 she had a cardiac arrest and was hospitalised for one month. He then found that his father had withdrawn all of the money set aside for the applicant’s studies, which was used to pay his mother’s treatment. The applicant told the Tribunal that he ceased his studies at AITE in about February 2016.

1. The Tribunal noted at the hearing that there were no medical records before it of the applicant’s mother’s medical condition. There was a reference to a medical report in the Delegate’s decision, however it was not on the copy of the Department’s file made available to the Tribunal. The Tribunal indicated to the applicant that if he wished for the Tribunal to consider any medical reports relating to his mother’s medical condition, he would need to provide them within a fortnight of the hearing. On 30 June 2019 the applicant provided the Tribunal with certified copies of the following medical records from Amandeep Hospital, Pathankot, India:

   a.Discharge Summary from the Department of Cardiology for Mrs Rajesh Kumari, for discharge on 22 January 2016;

   b.‘Investigation Summary’ dated 15 January 2016;

   c.Notes of Dr Sonali Sharma;

   d.Discharge Report; and

   e.Document containing ‘Treatment Advice on Discharge’.

2. These medical documents indicate that a Mrs Rajesh Kumari, who was 52 years old at the time, was admitted to the Cardiology Department on 15 January 2016, suffering from a number of medical issues. She was discharged on 22 January 2019 in a stable condition, advised to have close follow-up. A number of medications were prescribed and a follow-up appointment with the Cardiology Department was arranged for three days following discharge. Based on this evidence the Tribunal accepts that the applicant’s mother suffered a range of medical conditions and in January 2016 was hospitalised following a cardiac arrest.

3. The applicant stated that he again saw a lawyer in January 2016, when his mother became ill. He said that the lawyer had advised him that once his Confirmation of Enrolment was cancelled, if he left the country he may not be able to return to Australia. The Tribunal has some difficulty with this evidence, given the applicant’s Confirmation of Enrolment at AITE was not cancelled until July 2016. The Tribunal considers that if the applicant was encountering difficulties from January 2016 due to his mother’s health and the consequent effect on his mental health, it was open to him to contact his education provider and seek a deferral of his studies.

4. The applicant stated that when he obtained legal representation he went to see a psychologist, who said that the applicant had depression, and that a copy of the psychologist’s report was provided to the Department.

5. A copy of a report of Mr Singh, Consultant Psychologist, dated 29 March 2017 is contained in the Department’s file. This report indicates that the applicant consulted Mr Singh on 28 March 2017. Mr Singh’s report states that the applicant was suffering depression, anxiety and stress as a result of his mother’s deteriorating medical health. The report refers to the applicant’s inability to study from July 2016 until the date of the report in March 2017. The Tribunal notes that the applicant met with Mr Singh after the Department issued him with a NOICC on 14 March 2017. There is no evidence before the Tribunal that the applicant sought treatment for depression, anxiety or stress prior to his consultation with Mr Singh. The Tribunal also notes that Mr Singh’s report recommends the applicant continue counselling. At the hearing the applicant confirmed that he did not see Mr Singh again following this consultation on 28 March 2017, despite the recommendations in his report. The applicant stated that he tried to call Mr Singh again about one month before the hearing, but did not manage to get in touch with him.

6. The Tribunal would ordinarily give a report produced under these circumstances little weight, noting the applicant’s personal circumstances recorded by Mr Singh were recounted to him by the applicant after the applicant received the NOICC. In addition, the report refers to the applicant’s inability to study from July 2016, five months after the applicant’s mother’s hospital admission in January 2016, and four months after he stated he ceased studying in February 2016.

7. The Tribunal also raised with the applicant at the hearing that Mr Singh’s report refers to another patient in addition to the applicant. The Tribunal asked the applicant whether he wished to comment on this. The applicant stated that he did not have any idea how the references to a Mr Rehman had found their way into the report and that when he had the consultation with Mr Singh, it was just he and Mr Singh in the room. He stated that he sat with Mr Singh for over two hours and talked with him over the phone twice in the following days. The Tribunal accepts that the applicant did have a face-to-face consultation with Mr Singh, however the references to another patient in both the observations and recommendations sections of the report raise questions as to the reliability of the information contained in the report. This raises further concern as to the weight which the Tribunal can give to give this report, and the Tribunal confirms that it gives it little weight.

8. The Tribunal heard evidence from Mr Palwinder Singh by telephone. The applicant requested that this evidence be provided to help establish the state he was in when his mother’s health deteriorated in January 2016. Palwinder Singh told the Tribunal that he was a manager at SNJ Recruitment Pty Ltd, the company which employed the applicant when he first came to Australia as a student. He stated that the applicant worked had worked there for approximately 18 months and his role was to pack eggs. Palwinder Singh stated that towards the end of his employment, the applicant was not doing well and he lost his job as a result of his work performance. He was given a few warnings as he was not concentrating and was breaking eggs. In addition there were times when he was not turning up to work. He stated that the applicant was given five to six warnings before his employment was terminated. Palwinder Singh stated that he believed something was upsetting the applicant at the time. He indicated that the issues occurred roughly eighteen months prior to the hearing, though he wasn’t able to tell the Tribunal the exact dates as he didn’t have access to the books. He indicated that he would check the records and supply a letter with these details to the applicant.

9. On 30 June 2019 the applicant provided the Tribunal with a copy of a letter from Ishan Bansal, Managing Director of SNJ Recruitment Pty Ltd, dated 20 June 2019. In this letter Mr Bansal states that the applicant was employed by the company from 5 September 2014 to 22 October 2015. The Tribunal notes that on the applicant’s evidence, his mother’s health deteriorated in January 2016, and it was from this point that he was unable to study. Given the applicant was no longer employed with this company at the time of his mother’s hospitalisation, Palwinder Singh’s evidence does not lend support to the applicant’s assertion that his mother’s hospitalisation affected his work performance.

10. The Tribunal notes that the Delegate’s decision refers to information contained within the applicant’s PRISMS record which indicates the applicant ceased his studies in the Advanced Diploma of Leadership and Management in March 2016 due to unsatisfactory course progress and that evidence in PRISMS indicates that the applicant’s education provider implemented an intervention strategy for the applicant’s course progress. Although the PRISMS record which the Tribunal has access to indicates that the applicant’s enrolment in the Diploma of Leadership and Management was cancelled for ‘Unsatisfactory course progress’, the remaining information summarised in the Delegate’s decision, relating to an intervention strategy, is not contained in the PRISMS record or copy of the Department’s file made available to the Tribunal. The Tribunal therefore does not take this information into account in assessing the circumstances in which the ground for cancellation arose.

11. Although the Tribunal accepts that the applicant encountered difficulties as a result of his mother’s health condition in January 2016, for which feelings of depression, anxiety and stress would be natural, the applicant’s evidence at hearing and the documentary evidence provided do not indicate that the circumstances of the breach were entirely beyond the applicant’s control, nor do they justify the applicant remaining unenrolled for a period of almost eight months when the purpose of his visa was to study. The medical documents provided by the applicant suggest his mother was hospitalised for a period of approximately one week, from 15 to 22 January 2016, as opposed to the applicant’s evidence at hearing that she was hospitalised for a month No medical documents from after January 2016 were provided, though the Tribunal accepts that the applicant’s mother was prescribed medication in January 2016 and a follow-up appointment was organised for three days after discharge. One of the chief reasons the applicant gave for his inability to study from this point onwards was that the funds he needed for his studies were instead used for his mother’s health. The applicant provided no details of the cost of his mother’s treatment, though the Tribunal accepts that there may have been costs associated with her medication and ongoing follow-up.

12. While the Tribunal is prepared to give the applicant the benefit of the doubt that there were financial impediments to him studying from January 2016, it is not satisfied that there were extenuating circumstances out of the applicant's control for the failure to be enrolled from July 2016 until March 2017. On the applicant’s own evidence, after January 2016 he ceased to have sufficient funds to support his study in Australia. The Tribunal is of the view that from this point the applicant ceased to be a genuine student as he could not fulfil the very purpose for his presence in Australia and for his visa. This in itself could have given rise to a ground for cancellation of his visa as the circumstances which permitted the grant of the visa (the financial capacity to undertake study) ceased to exist. The Tribunal notes that the applicant did not raise these financial difficulties with the Department when he responded to the NOICC and this issue was raised for the first time at the Tribunal hearing, potentially also raising issues with respect to the applicant’s honesty in his dealings with the Department in March 2017.

13. The applicant remained in Australia despite his evidence that he was unable to concentrate on his studies because of his mother’s health and because he ceased to have the funds to support his studies. He could at this point have sought counselling and a deferral of his studies from his education provider, or he could otherwise have returned to India and continued his studies in Australia once the issues which prevented him from studying were resolved. He claims that he sought advice from a lawyer in 2016, who told him that if he returned to India there was a chance that he would not be allowed to return to Australia as his Confirmation of Enrolment had been cancelled. The Tribunal does not find this a satisfactory or compelling reason for the applicant remaining in Australia in breach of a condition of his visa. The applicant was aware that remaining enrolled in a registered course of study was a condition of his visa and it was his responsibility to ensure that he complied with the conditions of his visa. The Tribunal therefore gives this little weight against cancelling the visa.

    Past and present behaviour of the visa holder towards the department

14. The applicant stated at the hearing that he was not aware of any issues with his behaviour towards the Department. The Delegate noted in the Department’s decision that there is no evidence that the applicant has been uncooperative with the Department. The Tribunal notes the statement the applicant provided to the Department prior to his visa being cancelled, although it also notes that in the applicant’s response to the NOICC issued in March 2017 he made no mention of the financial difficulties which he gave evidence of at the hearing, and which he claims impacted him after March 2016, suggesting the applicant may not have been entirely up-front with the Department as to his circumstances when responding to the NOICC. Nevertheless, the Tribunal gives this a little weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

15. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s 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

16. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status.

17. The Tribunal is also mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The applicant may therefore be unable to complete the studies which he enrolled in after the hearing, in the Advanced Diploma of Leadership and Management. As noted above, the applicant stated that the sole purpose for him remaining in Australia is to obtain a tertiary qualification and he now wishes to obtain any qualification he can as he does not wish to return to India without a qualification. The Tribunal notes that the applicant enrolled in a course in March 2017, in the Diploma and Advanced Diploma of Leadership and Management, shortly after receiving the NOICC. Although the applicant claims that he studied this course for approximately five months, the applicant provided no documentary evidence of his progress in this course and the enrolment was subsequently cancelled. Although the applicant has now provided a fresh Confirmation of Enrolment in the Advanced Diploma of Leadership and Management and evidence that his cousin will support him financially with his studies, the Tribunal gives little weight to these claims given the applicant’s enrolment history since 2014. The Tribunal has considered the mandatory legal consequences of the visa cancellation and finds that they do not provide weight against cancelling the visa.

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

18. Not applicable.

    Any other relevant matters

19. The Tribunal finds that there are no other relevant matters and weighs this consideration neither in favour nor against cancelling the visa.

20. As noted above, the applicant remained unenrolled for a period of almost eight months, in breach of his visa conditions. The Tribunal has weight up the various matters for consideration in the exercise of the discretion, but finds that they provide insufficient weight against cancelling the visa.

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

    DECISION

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

    Frank Russo
    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.