Sherchan (Migration)

[2020] AATA 4640

Sherchan (Migration) [2020] AATA 4640 (21 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sangeeta Sherchan

CASE NUMBER:  2002225

HOME AFFAIRS REFERENCE(S):          BCC2019/4965499

MEMBER:Michael Biviano

DATE:21 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 21 October 2020 at 11:30am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – study difficulties, deferral, cancellation of enrolment and offer of re-enrolment the next year – enrolment in different course at different institution on advice of migration agent – failure to enrol in any subjects and cancellation of enrolment – discretion to cancel visa – study history and personal and financial circumstances – mental health – long period of non-enrolment – 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 29 January 2020 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 had not complied with subclause (2)(a) of condition 8202 of her visa as she was not enrolled in a registered course of study. 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 hearing of this matter was initially listed for 29 June 2020. On 28 June 2020, the evening before the hearing, the applicant sought that the hearing be adjourned because she was suffering from cold and flu symptoms which affected her voice. No medical evidence was submitted in support of the application and the application was refused.

4. The hearing proceeded on 29 June 2020, but it was evident at the commencement of the hearing the applicant’s voice was extremely hoarse, and that it would be inappropriate for the hearing to proceed. The applicant made a further application to adjourn the hearing, which was granted.

5. The rehearing was relisted and proceeded before the Tribunal on 21 September 2020.  The applicant appeared before the Tribunal to give evidence and present arguments.

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:

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

   ·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: 8202(2)(b);

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

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

9. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course for the period from 31  August 2018 to 29 January 2020 and she had not complied with the requirements of subclause (2)(a) of condition 8202.

10. The Decision Record of the delegate of the Department of Home Affairs on 29 January 2020, which was provided to the Tribunal by the applicant, confirms the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 14 May 2018 and the reasons for the cancellation of the visa (Decision Record).

11. The applicant is a 26-year-old Nepalese national who came to Australia on 4 February 2014  pursuant to a Student (Subclass TU 573) visa for the purpose of completing a Bachelor of Nursing, which was to be preceded by the University Foundation Studies Standard course (UFSS course).

12. The applicant completed her UFSS course in 2015, but due to not achieving a sufficiently high enough grade, in one unit, which would enable her to proceed to study the Bachelor of Nursing she claims that she was required to repeat that unit.

13. The applicant successfully completed the course and after obtained a deferral from Western Sydney University to study the Bachelor of Nursing due to compassionate or compelling circumstances. 

14. The applicant commenced studies in the Bachelor of Nursing in February 2016. The applicant gave evidence that due to various reasons, including her family, financial reasons, relationships and her mental state she struggled with her studies, and she failed some subjects twice, which resulted in the university cancelling her enrolment on 15 March 2018.  but she was offered the opportunity to reapply in 12 months’ time.

15. On 28 March 2020, the applicant enrolled in a Bachelor of International Business at TOP University and on 14 May 2018 she was granted a Student (Subclass 500) visa for the purpose of completing the Bachelor of International Business.

16. The Decision Record confirms that the PRISMS records indicated that her confirmation of enrolment in the Bachelor of International Business was cancelled on 31 August 2018, because she failed to enrol in any subjects and the last day of her study in that course was 25 June 2018.

17. On 23 June 2020, the applicant, prior to the hearing, submitted a statement to the Tribunal (Statement) which in addition to making submissions, set out her circumstances as follows:-

    I came to Australia on 4th February 2014 from Nepal with the hopes of pursuing my higher studies in a privileged and advanced country. I too was very hopeful about a new start in my life.  I was looking forward to study and build myself as an independent person in future. But things took a different turn for me. I have been through a lot in these years.  I have had few rough times that I would like to go in detail and provide all the circumstances I can. Please bear with me. 
    
    I initially came to Western Sydney University to study the bachelor of nursing with the pathway of foundation studies. 

    So , it was a four year course, one year of foundation studies and 3 years of bachelor course. After I came here and talked with other students I realised that I was already qualified to study bachelors as I had received band 7  in my IELTS and the requirement to study bachelor of nursing was 6.5 in each band which I already had.  Later, I came to know that I have been scammed by the migration agents in home country and since I have already approved and paid for the first semester already, the university did not approve to change it.  So, it wasn’t a good start already. 
    
    However, I was doing good with my first two semesters. Since it was a pathway, the criteria to enter the bachelor was to achieve not less than grade B on Academic English 2 unit which was a part of the third (last) semester.  So, the last assignment of Academic English 2 was a group presentation. Unfortunately, one of the group member did not reference the image properly and our assignment was considered plagiarised and weren’t provided any grades for that assignment which eventually got us grade less than B. This would eventually stop me from joining the bachelors as per the criteria. But when I talked to the unit coordinator, she told me I should not have to worry about it as I had my IELTS band 7 which proves that my English is good enough for me to qualify and this grade criteria was not compulsory for me. But when it was time for me to provide the grades and enter bachelors, the university did not approve my IELTS as they said they told me the validity of IELTS must be more than six months which wasn’t even mentioned to me earlier by the unit coordinator.  Since my IELTS certificate had the validity of less than six months I was not eligible to enter university to do Bachelors.  Hence, I had to repeat the unit again and wait for the next year session and what made me more disheartening was that I should not have been required to study foundation studies in the first place.  It was a waste of time and money. I was very shattered and helpless. 
    
    So, I had to repeat the unit Academic English 2. While I was doing that, there was a massive 7.8 magnitude earthquake on my home country Nepal on 25 April 2015. It was catastrophic. My house was partially damaged. I also lost my very dear friend to that earthquake. And my little sibling went missing for weeks whom I loved so much.  She was eventually found. But at that time I just could not focus on my studies as I was traumatized  by the events back home . So , I didn’t fulfill the grade criteria again . I actually wanted to go back but my family insisted me not to come as it was not safe yet and the earthquake could reoccur. 
    
    I had to  study Academic Unit 2 for the third time again and this time despite all the complications I really wanted to get through it. Because I felt that I didn’t deserve it . Hence, I tried my best and finally  achieved grade A. My coordinator Lyneene Orsini was very impressed by me and even asked me to speak on the graduation ceremony of foundation studies as she believed I could inspire other students. She knew about the hardships that I had to go through. Unfortunately I could not attend the graduation. 
    
    So , after two years of struggle and traumatic events I  was finally going to start my Bachelors.  I thought this would be the end of my bad days . But it was not over yet. Since my parents were providing  for my education I felt that they were starting to get disappointed and felt burdened by me as I had wasted their effort and money. To keep it short, my family insisted me on getting married. It is common in Nepal for the girls to get married once they reach eighteen . And I was already over twenty. They wanted me to do an arrange marriage to the guy of their choice whom I have not even seen . At that time I already had a boyfriend of my own who was there for me all this time. But I was not able to tell to my parents since my boyfriend and I am not from the same religion and caste. He is a hindu and I am a thakali tribe(Buddhist). It is still a very big deal in Nepal and you can even be abandoned from your family if you marry a different caste. I was always fearful of that. My family were just pressurising  me to a level that I felt quite distant from them . I was doing poorly in my studies and life again. It was like a cycle and I was stuck to it. 
    
    I was really scared that they will just eventually get me married to this older person that I do not love or even know properly.  So I decided to get married to my boyfriend without letting my family know. So we got married on 23 March 2017. If I told my parents they would abandon me and cut ties with me.  I was in very much stress all this time . Addition to all of the problems, my fees got misplaced on 6th April 2017 which my parents had sent from Nepal to University bank account . The university could not locate it.  The university were clueless about where it might have gone. My family were really worried as it was a large sum of money . Since my account remain unpaid, my student portal was all blocked. I was not able to access anything. I could not do my assignments . Also my husband applied for a spouse visa which got rejected on 6 September 2017. Nothing was going in our way. We were scared we have to go through a distance relationship which might eventually affect our relationship.
    
    All of these circumstances stopped me from doing well in my studies. Since I was getting poor results, the university told me I would not be able to study for a year as I have repeated the units twice . It asked me to take my time off and recover whatever is holding my studies down. I tried to talk to university. They told me I would be able to go back after a year but I have to re-apply for it again . I was unaware about what to do in such situation.  So, I seeked a help from migration agent. I explained them about my situation and my visa expiry date was also coming near. 

    Since, I was not allowed to study at western Sydney university for a year. I thought of utilising that time interval in order to prepare me and take some nursing or health sector related course for a year time and eventually would like to go back to university and continue my studies . But, when I went to get information regarding my visa extension  the migration consultancy told me otherwise and informed me that I would be at the risk of my visa not getting extended if I undertake some random course for a year. And that way I won't be able to pursue any kind of studies . I was terrified and did whatever they recommended me since I believed they know better than me. They advised me to go for another bachelor course international business at TOP education institute. They also told me that I can go back to my own nursing course after a year . They hastily transferred me although the session had already started and that course is really new to me . They told me I could even continue studying if I happen to grow on the course and like it . It was too late to realise that I had been fooled again for their benefit as they would have received certain amount of commission from the college as they referred me to them .

    I was very disheartened and disappointed at myself for being so naive . I felt so helpless and I could not do anything about it . Also my parents came to know about how I have been struggling to study and did not cooperate to my situation properly. They did not understand my situation . I could not even catch up with the course and felt stuck where there was no way out . 

    My family had really high expectations from me when they first sent me to Australia and I felt like I failed to meet them . After all these circumstances I started blaming my whole existence.  I was even  getting suicidal thoughts and was struggling to think straightly. Many  of the circumstances were not in my hands . I did not want to go through these rough times that resulted in this situation .

    I tried to gather all the evidences regarding my hardships at Western Sydney university. I wanted to provide all the emails and the conversations between me and university.  Since the student email was strictly only used in order to contact university. All of my emails, enquiry  are there in my student email . However once the student has left the university for more than sixty days , it is inaccessible . I tried to talk to university IT department  and student central  .  But as always, they failed to help me . I even requested them to provide me access as it is for the visa purposes. They said they could only provide me if I had the court order. So I sincerely want to apologise for it.

18. During the hearing the applicant conceded in evidence that she did not want to study the Bachelor of International Business and felt she was stuck in her studies as she wanted to complete the Bachelor of Nursing at Western Sydney University.

19. She admitted in evidence that she struggled with that course because she commenced the course 2 to 3 weeks late, she undertook the course based on advice of her educational consultant and she had really wanted to do a health related course. She believes that she was fooled by the agent. She was disappointed by the course and did not enrol in subjects in second semester and she conceded that she lost her enrolment in the Bachelor of International Business on 31 August 2018.

20. The applicant in evidence admitted that she had not enrolled in any further courses since 31 August 2018.

21. On 7 January 2020, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of her visa.

22. On 21 January 2020, the applicant provided the Response to the NOICC. The Response was very similar to her Statement in content regarding her circumstances.

23. The applicant conceded in evidence that she was not enrolled in a registered course from 31 August 2018 to 29 January 2020, being a period of nearly 17 months. By reason of not being enrolled in a registered course for that period of time, she did not meet condition 8202(2)(a) of her visa.

24. On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course of study for the period from 31 August 2018 to 29 January 2020. Accordingly, the applicant has not complied with condition 8202(2) of her visa. As this was a condition that was attached to her visa, the applicant therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

25. 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, and whether the visa holder has a compelling need to travel or to remain in Australia

26. The applicant gave evidence that she came to Australia to study and undertake the courses as discussed above. She arrived in Australia on 4 February 2014, more than 6 years and 8 months ago and while in Australia she has only completed the UFSS course.

27. The applicant came to Australia for the purpose of undertaking and completing a Bachelor of Nursing. There is no doubt she came to Australia for the purpose of studying in Australia.

28. As discussed above, the applicant was enrolled in a Bachelor of Nursing course, which was initially deferred on compassionate grounds, but ultimately after commencing studies in February 2016 in that course, her enrolment in the course was cancelled on 15 March 2018 due to unsatisfactory course progress.

29. She then enrolled in the Bachelor of International Business on 28 March 2018, but she lost that enrolment on 31 August 2018 and has not been enrolled in a course since.

30. The applicant’s evidence was in essence that due to her personal circumstances, her poor academic results and believing she had no chance to get back to Western Sydney University to complete the Bachelor of Nursing, she felt stuck and hopeless. She did not enrol in a further course.

31. The applicant’s unsatisfactory course progress over the 6 years and 8 months of her stay in conjunction with her failure to not be enrolled for a period of nearly 17 months reveals that during that period the purpose of her stay was not to study. The applicant’s interrupted and incomplete studies, together with her long period of non-enrolment are indicative of a student who has not applied herself and does not intend to genuinely study.

32. The applicant’s Statement and evidence about her family life back home revealed the following:-

    a.She was under substantial pressure from her family to complete her studies and return home and get married;

    b.She has not told her family about her struggles with her studies and visa;

    c.She has not told them about her marriage to a British person in 2017;

    d.She is fearful of telling them about those matters;

    e.She and her husband were devastated about the applicant’s husband visa spousal application which was refused on 6 September 2017;

    which suggests that since 2017, the primary purpose of her stay was to not return home to Nepal but forge a new life with her husband.

1. The applicant has given evidence that if the cancellation of the visa is set aside and she is able to obtain a new study visa, she intends to apply to undertake a nursing degree in Australia, possibly at Western Sydney University and obtain credits for her completed subjects. She gave evidence that she would need to fund that course with assistance from her parents or possibly her husband.  She confirmed that she had not completed her enquiries and gave evidence that she may undertake such studies in the United Kingdom with her husband.

2. Having regard to the applicant’s evidence and her conduct during her stay in Australia, the Tribunal accepts that the applicant has travelled to Australia for the purpose of studying and she intends to study in the future, but her academic outcomes and the period of non-enrolment reveal that she has not stayed here for the purpose of undertaking her studies.

3. For these reasons, the Tribunal gives these matters marginal weight towards the visa being cancelled.

   The extent of compliance with visa conditions

4. The applicant was not enrolled at the appropriate level course for the period from 31 August 2018 to 29 January 2020, being a period of nearly 17 months. Therefore, the applicant has not complied with condition 8202(2)(a) for a long period of time. The non-compliance with condition 8202(2)(a) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for non-enrolment or finds she was not responsible for the reason for non-enrolment.

5. As discussed above, the applicant’s non-compliance with the visa condition relates to her numerous difficulties.

6. Those difficulties included:-

   a.She was wrongly advised by her agent that she needed to undertake UFSS course, when she was not required to undertake that course to commence studying the Bachelor of Nursing as she had already obtained 7.0 on her IELTS results;

   b.She received a poor mark in a group project in the Foundation Studies Course, which required her to repeat that Unit of the Course;

   c.There was a large earthquake back home in which her sister went missing but was later found and a friend died, which acted as a distraction to her studies and she did not complete the courses;

   d.She believes she wasted 2 years in completing the Foundation Studies, when she was entitled to commence studies immediately in the Bachelor of Nursing;

   e.She was able to commence the Bachelor of Nursing in March 2016 at Western Sydney University, but struggled with her Bachelor of Nursing degree and failed at least one subject twice, which resulted in her losing her enrolment in the course in March 2018.

   f.She was being pressured to marry a person they had chosen for her in circumstances when she had a boyfriend of a different caste and religion, who she believed would not be accepted by her parents;

   g.She married her boyfriend on 23 March 2017, but she has not told her parents;

   h.Her husband applied for a subsequent student visa which was refused on 15 September 2017 resulting in further hardship;

   i.She felt that she had been naïve and she was disheartened and disappointed by her situation;

   j.The applicant and her family had high expectations, and when she commenced her studies and after what had transpired, she had started blaming her whole existence to the extent that she was getting suicidal thoughts. The applicant said in the Statement that she had not sought medical assistance due to her culture where mental illness is not taken seriously;

   k.She enrolled in the Bachelor of International Business on 28 March 2018, based on the advice of her agent but at the time of enrolling, the course had already been taught for 2 to 3 weeks and she had no background in those subjects, and believed she had been fooled again; and

   l.She decided not to enrol in subjects in the second semester in the Bachelor of International Business. Her enrolment in the course was cancelled on 31 August 2018.

7. While the applicant has faced substantial difficulties they do not go to the issue of why she was not enrolled for nearly 17 months.

8. The applicant gave evidence that she did not enrol in any further courses because she felt stuck and thought it was hopeless. She continued working in her employment as a cleaner cleaning offices 20 hours per week.

9. The Tribunal notes that while the applicant may have in the past had suicidal thoughts and was stuck in her predicament, there was no medical evidence before this Tribunal to substantiate that her condition was at such a level that she was unable to seek enrolment in another course and study that course. Further, there is nothing to suggest by reason of the applicant’s employment, that she could have not enrolled in a course of study and sought a deferment of her studies.

10. Essentially it was open for the applicant to gain enrolment during the 17-month period between 31 August 2018 and 29 January 2020, but she chose not to get enrolled.

11. Many of the difficulties the applicant has submitted relate to challenges the applicant sustained while studying and why she lost her enrolment in the Bachelor of International Business; they do not explain why she was not enrolled in a course of study for 17 months.

12. The Tribunal is not satisfied on the material before it or on the applicant’s evidence that she has a reasonable explanation for her long period of not being enrolled and in breach of a condition of her student visa.

13. The applicant knew or ought to have known that she was in breach of a condition of her visa.

14. The Tribunal finds that apart from the above matters before this Tribunal, there are no other matters raised about the applicant not being compliant with a condition of her visa.

15. Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level.

16. The Tribunal finds that the reasons for not being enrolled in a course were the responsibility of the applicant.

17. Having regard to the long period of the breach and the reasons for not being enrolled in a course after losing the enrolment in the Bachelor of International Business course, the Tribunal gives these matters substantial weight towards the visa being cancelled.

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

18. The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.

19. The applicant gave evidence that if her visa was cancelled, it would cause her and her family a substantial degree of hardship as:

    a.It would mean that she would either go to the United Kingdom with her husband or she would return home without her qualification, which would make it difficult to get a good job in Nepal, and she would have low self-esteem as she has studied for years without a qualification;

    b.She would endeavour to recommence her studies possibly in the United Kingdom to obtain her nursing qualifications;

    c.She would be returning to a third world economy if she had to return to Nepal;

    d.She would have substantial mental health issues if she could not complete her studies in Australia;

    e.She and her family would have wasted tuition fees and time on undertaking qualifications which have not been completed;

    f.She would need to confront her parents about her marriage and fears that it would result in her being isolated by her family; and

    g.She would be unable to complete her studies in Australia, losing the benefit of the subjects completed in Australia.

20. The Tribunal notes that the applicant has completed the UFSS course whilst in Australia and she will have completed some qualifications if the visa is cancelled.

21. Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and her family if the visa is cancelled, in the cost of tuition fees that have been paid for the last 6 years and 8 months, but they are predominantly lost whether or not she undertakes any further study in Australia.

22. The Tribunal also finds that there is nothing preventing the applicant studying back at home or in the United Kingdom if she goes to the United Kingdom with her husband.

23. Many of the matters raised by the applicant are not relevant to the cancellation but are matters that go to her personal circumstances and will remain regardless of the cancellation – such as the issues with her parents and the economic conditions in Nepal. The purpose of a student visa is to enable a visa holder to come to this country to study and stay in Australia temporarily, complete their course and return home. It does not enable a visa holder to have permanent residency.

24. The Tribunal accepts that the applicant will be prevented from returning to Australia within the 3-year period after the cancellation of her visa to complete her studies.

25. In any event, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

26. The Tribunal considers that the above matters give some weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

27. 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.

28. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

29. Ultimately, the responsibility regarding enrolment rests with the student.

30. The applicant would have known and been aware that by not being enrolled in a registered course of study and at the appropriate level, she would be in breach of condition 8202(2)(a) and that her visa may be cancelled.

31. The primary responsibility of the applicant under the visa is to be enrolled in and undertake a registered course at a level appropriate to her visa. The applicant was not enrolled in a registered course for a period of more than 15 months, which is a long period of time to be in breach of a condition of the visa.

32. The Tribunal has considered the applicant’s explanations for why she was not enrolled in a registered course for such a long period of time and therefore in breach of condition 8202(2)(a). The Tribunal does not accept those circumstances were beyond her control, or circumstances that provided a reasonable explanation for not being enrolled in a course for such a long period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

33. According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140 of the Act

34. The cancellation of the visa will not affect the visa of any other person. In the circumstances, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

35. If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of further visas.

36. Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next 3 years.

37. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.

38. The applicant gave evidence that if the visa remained cancelled, she would return to Nepal or go to the United Kingdom with her husband, and therefore there is no indication that she would become unlawful or be subject to detention.

39. Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    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

40. This matter is not relevant in this application as there is no evidence that the applicant has a child who would be impacted by the cancellation of the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

41. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

42. As there are no other relevant matters identified, the Tribunal gives this factor no weight towards the visa not being cancelled.

    Conclusion

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

    DECISION

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

    Michael Biviano
    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.