Shubhechchha (Migration)

[2020] AATA 3373

Shubhechchha (Migration) [2020] AATA 3373 (22 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Bhandari Shubhechchha

CASE NUMBER:  1825201

HOME AFFAIRS REFERENCE(S):          BCC2018/1887804

MEMBER:L. Symons

DATE:22 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 22 June 2020 at 5:47pm

CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant has not been enrolled in a registered course of study – breached condition 8202 – no compelling need to remain in Australia – mental health condition – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
Migration Regulations 1994 (Cth), Schedule 8, Visa Condition 8202

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 August 2018 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 the applicant was not enrolled in a registered course of study since 5 October 2017 in breach of condition 8202(2) of her Student visa. On 3 September 2018, she applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal on 14 January 2020 to give evidence and present arguments.

4. 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.

5. 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 AND FINDINGS

   Did the applicant breach 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 was granted a Student visa on 24 May 2017. This visa was subject to a number of conditions including condition 8202. On 30 July 2018, the delegate sent her a Notice of Intention to Consider Cancellation (NOITCC) of her Student visa. She was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why her Student visa should not be cancelled.

8. In her response to the NOITCC dated 13 August 2018, the applicant stated that she came to Australia to study a Diploma of Business leading to a Bachelor of Business Administration degree at Southern Cross University commencing in June 2017. She stated that the campus was moving location and she was given the option to change her education provider. She stated that she initially applied to the Australian Institute of Business and Technology to enrol in a Diploma of Nursing. She stated that she was deemed ineligible to apply and lost a lot of time. She stated that she was granted a release letter and then applied to enrol in a Bachelor of Business (Management and Finance) at King’s Own Institute. She stated that she was required to provide her academic transcript by November, but Southern Cross University denied providing her with her academic transcript. She stated that this resulted in her being unable to enrol in any of the educational institutes and put her in turmoil.

9. The applicant stated that after this her mental state deteriorated, she had no one to help her and struggled to make correct decisions. [She] stated that she consulted a psychiatrist who treated her. She stated that that this experience cost her a lot of months and after she became “fit” she decided to resume her studies. She stated that she obtained a Confirmation of Enrolment (COE) from Future College to study a Diploma and an Advanced Diploma of Accounting. She stated that she is ready to get on with her studies and achieve the degree she values so much. She stated that Accounting is where her future and career exist.   

10. The applicant provided to the Department of Immigration (the Department) a Psychological Report dated 2 August 2018, [a Medical Certificate] dated 5 April 2018, a letter of offer and acceptance from the Australia Institute of Business & Technology dated 13 October 2017, two COEs from Future College and a letter of offer from the King’s Own Institute dated 13 February 2018. The delegate cancelled her Student visa on 20 August 2018.

11. The applicant provided the Tribunal with a copy of the Department’s Decision Record dated 20 August 2018. She also provided copies of the Psychological Report dated 2 August 2018, [two COEs] from Future College, a letter of offer and written agreement from King’s Own Institute dated 13 February 2018, a ‘Character Transfer Certificate’ dated 5 September 2016, a Transfer Certificate dated 21 May 2016, a Character Certificate dated 5 September 2016, a 2006 Senior School Certificate Examination result, an email from Southern Cross University, the bio data page of her Nepalese passport issued on 24 May 2016, her Bupa card, a Conditional Letter of Offer from Victoria University dated 13 January 2020 and an undated personal statement.

12. The applicant requested and was granted further time after the hearing to provide additional evidence. The Tribunal received a COE from Global English College for a non AQF award General English course and copies of documents previously provided to the Tribunal including her undated statement and a Conditional Letter of Offer from Victoria University dated 13 January 2020.  

13. During the hearing, the applicant gave evidence that she agreed with the Department that she has not been enrolled in a registered course of study since 5 October 2017 and had breached condition 8202 of her Student visa. This evidence is consistent with the records of the Department of Education which indicate that she was enrolled in a Diploma of Business from 3 July 2017 to 9 June 2018 to be followed by a Bachelor of Business from 2 July 2018 to 6 June 2020. Her enrolment in the Diploma of Business was cancelled on 5 October 2017 because the education provider was unable to deliver the course.

14. The Department wrote to the applicant on 30 July 2018 informing her of its intention to cancel her Student visa. She wrote to the Department on 3 August 2018 stating that she was unable to provide a response by 6 August 2018 and was given further time until 13 August 2018 to respond. She then enrolled in a Diploma of Accounting commencing 6 August 2018 and an Advanced Diploma of Accounting commencing 23 September 2019 at Future College. The Tribunal put this information to her, pursuant to s.359AA of the Act, and noted that it may find that she was not enrolled in a registered course of study from 5 October 2017 until 5 August 2018 and had breached condition 8202(2) of her Student visa.

15. The applicant responded that the reason why she did not enrol in a registered course of study prior to receiving the NOITCC from the Department was because she was in the process of getting enrolled. She stated that she received a Letter of Offer from Future College but could not enrol because of the transcript. She stated that she applied to many colleges but none of them accepted her. She stated that only Future College accepted her but then asked for a transcript and cancelled the COE. When asked whether she understood that by not being enrolled in a registered course of study she had breached condition 8202 of her Student visa, she answered yes.

16. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course of study from 5 October 2017 to 5 August 2018 and accordingly has not complied with condition 8202(2)(a) of her Student visa.

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of her Student 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’.

    Purpose of the applicant’s travel and stay in Australia. Did the applicant have a compelling         need to travel to or remain in Australia?

18. The applicant gave evidence that when she came to Australia her intention was to study hard and get a degree. She stated that she wanted to return to Nepal and work in a better place.

19. The Tribunal referred to the applicant’s undated statement to the Tribunal in which she stated that she had enrolled in a Diploma and an Advanced Diploma of Accounting at Future College and aimed to complete those studies. When asked why she had not completed those studies, she responded that after she had enrolled, she received a letter from the Department indicating that her visa had been cancelled. She stated that she spoke to her education consultant who told her that she could continue to study.

20. The applicant stated that when she enrolled at Future College half the course had been completed. She stated that she asked them whether she could enrol in another course where she could start at the beginning of the course. She stated that they then cancelled her COE and told her to enrol in an English-language course which she studied for six weeks. She stated that she last studied in November 2019. When asked why she had not enrolled in a course since then, she stated that she has not been able to enrol in a course or get a job because her visa has been cancelled. She stated that she was only able to get a Letter of Offer.

21. The Tribunal asked the applicant why she did not return to Nepal if she was unable to study in Australia. She responded that she hoped to get a visa, get into a good college and continue her studies. She stated that she wants to get a good degree. She stated that she does not want to disappoint her parents or return to Nepal with nothing. She stated that the last year has been difficult for her. She stated that she moved out of her uncle and aunt’s home about a month ago and her parents are now helping her to pay rent.

22. The Tribunal asked the applicant whether there is any reason why she needs to remain in Australia and she responded that she wants to study but cannot get enrolled until she gets a visa.

23. Having considered the evidence, the Tribunal accepts that the applicant’s intention when she came to Australia was to study and obtain an Australian degree. However, she has made a series of bad or ill-advised decisions that have impacted on her ability to study in Australia. Other than for studying for six weeks in a non AQF award General English course in 2019, she has not studied since October 2017. The Tribunal finds that she has not fulfilled the purpose for which she travelled to Australia.

24. The applicant has provided the Tribunal with a Conditional Letter of Offer from Victoria University dated 13 January 2020. It is in relation to a Bachelor of Business (major in Accounting) commencing on 23 March 2020 and ending on 10 February 2023. It indicates that she is required to fulfil a number of conditions before she is entitled to receive an unconditional Letter of Offer. She was required to provide a certified copy of her IELTS report card, a certified copy of the bio data page of her passport and a certified copy of her academic transcripts and testamur/completion letter.

25. The applicant has not provided the Tribunal with any evidence that she is able to satisfy these conditions. She was given further time after the hearing to provide additional evidence but has not provided any evidence that she is able to satisfy the conditions that are a prerequisite to her enrolment in the Bachelor of Business degree at Victoria University. The Tribunal is not satisfied that she has demonstrated a compelling need to remain in Australia. The Tribunal gives this consideration no weight in her favour.   

    The extent of compliance with visa conditions

26. The records of the Department of Education indicate that the applicant was initially enrolled in a Diploma of Business from 3 July 2017 to 9 June 2018 to be followed by a Bachelor of Business from 2 July 2018 to 6 June 2020. Her enrolment in the Diploma of Business was cancelled on 5 October 2017 because the education provider was unable to deliver the course. She did not enrol in another course thereafter. The Department sent her a NOITCC of her Student visa on 30 July 2018. She wrote to the Department on 3 August 2018 stating that she was unable to provide a response by 6 August 2018 and was given further time until 13 August 2018 to respond. She then enrolled in a Diploma of Accounting at Future College commencing 6 August 2018 and an Advanced Diploma of Accounting commencing 23 September 2019.

27. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that she was not enrolled in a registered course from 5 October 2017 until 5 August 2018 and therefore breached condition 8202(2) of her Student visa. She responded that the reason why she did not enrol in a registered course prior to receiving the NOITCC from the Department was because she was already in the process of getting enrolment. She stated that she received a Letter of Offer from Future College but had not enrolled because of the transcript. She stated that she applied to many colleges but none of them accepted her. She stated that only Future College accepted her but then asked for her transcript and cancelled her COE. She stated that she wanted to get into a college.

28. The records of the Department of Education indicate that the applicant enrolled in a Diploma of Accounting from 6 August 2018 to 5 August 2019 and her enrolment in that course was cancelled on 22 August 2018. She then enrolled in Diploma of Accounting from 19 November 2018 to 18 November 2019 and her enrolment in that course was cancelled on 19 July 2019 for non-payment of fees. She then enrolled in a General English language course from 22 July 2019 to 27 September 2019 but her enrolment in that course was cancelled on 24 September 2019 for unsatisfactory attendance. The Tribunal put this information to her, pursuant to s.359AA of the Act, and noted that despite coming to Australia on 12 June 2017 she has not completed a single course here and the Tribunal may find that her Student visa should be cancelled.

29. The applicant responded that she knows it will make people think she cannot do it. She stated that she really wanted to study. She stated that she did not receive any correspondence from Future College about the cancellation of her enrolment. She stated that she was attending classes there.  

30. The applicant was not enrolled in a registered course from 5 October 2017 to 5 August 2018 and has not been enrolled in a registered course since 19 July 2019. These are substantial periods of time during which she was in breach of condition 8202(2)(a) of her Student visa. The Tribunal is not convinced that she has provided a satisfactory explanation for why she was not enrolled in a registered course during this period. (See below).

31. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of her Student visa. The Tribunal does not give this consideration any weight in her favour.   

    Degree of hardship that may be caused       

32. The Tribunal asked the applicant what hardship may be caused to her if her Student visa is cancelled. She responded that she came to Australia with a dream to get a good education and a degree. She stated that, if she returns to Nepal without that, it will “mentally torment” her. She stated that it would affect her life and her future. She stated that she made a mistake and should have been more careful.

33. The applicant stated that she does not want to return to Nepal with regrets. She stated that she wants to complete her education, obtain a degree and then return to Nepal. When the Tribunal pointed out that she wasted a year, she responded that she applied to colleges, no one accepted her, she could not get into any good colleges and got into Future College.

34. The Tribunal gives this consideration some weight in the applicant’s favour. 

    Circumstances in which the ground for cancellation arose

35. The circumstances in which the ground for cancellation arose are that the applicant failed to maintain enrolment in a registered course from 5 October 2017 to 5 August 2018 (and therefore substantial periods thereafter) resulting in the breach of condition 8202(2)(a) of her Student visa and the cancellation of this visa.

36. During the hearing, the applicant gave evidence that she got an opportunity to obtain a Letter of Release from her education provider (Southern Cross University) (in relation to the first course she was enrolled in) (Diploma of Business). She stated that she consulted an education agent in relation to enrolling in a nursing course. She stated that she obtained a Letter of Offer in relation to the nursing course and then obtained a Letter of Release (from Southern Cross University). She stated that when she tried to enrol in the nursing course, she was told that she could not enrol in that course with an IELTS test score of 5.5.

37. The applicant stated that her education agent tried to enrol her in another course and it took a lot of time. She stated that she obtained a COE from the Kings Own Institute and paid the fees. She stated that when she tried to enrol at the Kings Own Institute she was asked for her transcript from Southern Cross University. She stated that she approached Southern Cross University and asked for transcript but was told that they could only give her a Letter of Release. She stated that Kings Own Institute would not accept a Letter of Release and they cancelled her COE.

38. The Tribunal asked the applicant why Southern Cross University did not give her a transcript. She responded that she left before she did any examinations so there were unable to give her a transcript. She stated that she obtained correspondence from Southern Cross University to this effect and provided it to the Kings Own Institute, but they did not accept it and cancelled her COE in August 2018. When asked what she was doing between October 2017 and August 2018, she responded that her education agent told her that they could still get her into a nursing course and keep trying. She stated that this was the reason for the delay. She stated that in the end she asked her education agent to enrol her in an accounting course and that she would do the nursing course later.

39. The Tribunal asked the applicant whether she spoke to her education agent about the problems with her Student visa. She responded that she did, and he/she kept telling her until the last minute that they could get her into a nursing course. The Tribunal asked her whether she spoke to her aunt and uncle (with whom she was living at the time) and sought their help. She responded that they assisted her financially and help her to contact the education agent. She stated that she knew someone at the consultancy. When asked whether she spoke to someone at the Department about the problems she was having, she responded that she did not. She stated that she only spoke to the education agent.

1. The Tribunal asked the applicant whether she had any concerns about breaching a condition of her Student visa. She responded that she did but could only do what the education agent told her to do and was just waiting. She stated that, at the end, she said she would not be able to get into the nursing course and would study accounting or business. She stated that that was why she went to the Kings Own Institute, but it was too late by then.

2. Following the hearing, the Tribunal wrote to Southern Cross University and obtained information which indicates that they wrote to the applicant on 4 September 2017 in relation to the change of the campus location to Surry Hills. Southern Cross University wrote to her again on 21 September 2017 when they did not receive a response from her. Southern Cross University wrote to her on 3 October 2017 noting that she had chosen option 2 (not to relocate to the new campus), informing her that her COE would therefore be cancelled and gave her detailed instructions and deadlines by which to apply for a Letter of Release and a refund of unspent fees.

3. Information from Southern Cross University indicates that there was correspondence between them and the applicant on 6 November 2017 in relation to how to obtain a Letter of Release and on 9 November 2017 she was provided with a Letter of Release and given further information on how to apply for a refund of fees. On 9 March 2018, the applicant wrote to Southern Cross University requesting a copy of her Transcript. On 9 March 2018, Southern Cross University wrote to her indicating that they had no record of her completing any units at Southern Cross University. She was asked whether she was one of the students who opted out of continuing to study at Southern Cross University when the campus was relocated and advised that, if so, she was automatically withdrawn from the unit and should have been reimbursed her full unit fees. She was invited to contact Southern Cross University on a telephone number provided if she required further information.

4. Southern Cross University provided the Tribunal with information that, as the applicant withdrew from the course in the same session that she started the course, there was no academic transcript issued to her. The Tribunal wrote to the applicant on10 February 2020, pursuant to s.359A of the Act, and informed her of the above and provided her with copies of the correspondence received from Southern Cross University. The Tribunal noted that this information was relevant because the Tribunal may find that the reason she was not enrolled in a registered course of study between 5 October 2017 and 5 August 2018 was not due to circumstances beyond her control and the Tribunal may come to the conclusion that her Student visa should be cancelled.

5. On 21 February 2020, the Tribunal received an email from the applicant enclosing a written response, a Letter of Offer and written agreement from King’s Own Institute dated 13 February 2018 and a Conditional Letter of Offer and acceptance from the Australia Institute of Business and Technology (AIBT) dated 13 October 2017 in relation to a Diploma of Nursing. The Conditional Letter of Offer and acceptance from AIBT clearly states that there are English language requirements including a score of 7 in each of the four components of an IELTS test. It states that there is a 2 weeks deadline for a response and the course starting date was 6 November 2017. 

6. In her response to the Tribunal, the applicant stated that she was interested in studying nursing rather than accounting but was unable to do that in Nepal. She stated that she spoke to her education agent about this and was advised that her IELTS test score of 5.5 was sufficient to do a Diploma of Nursing. She stated that she then applied for a Letter of Offer from AIBT and received it on 17 October 2017. She stated that after she received the Letter of Release from Southern Cross University, she started processing (her enrolment) at AIBT. She stated that her education agent then informed her that she did not meet the English language requirements.

7. The applicant stated that she then tried to enrol in a Bachelor of Business (Management and Finance) at Kings Own Institute. She stated that it was a condition of her enrolment at the Kings Own Institute that she provide her Academic Transcript for the period July 2017 to February 2019. She stated that, as she had not completed any units at Southern Cross University, she was unable to obtain an Academic Transcript and could not satisfy the conditions of enrolment at Kings Own Institute. She stated that the Kings Own Institute then cancelled her COE, she was unable to enrol with any education provider and was in turmoil between October 2017 and August 2018.

8. The evidence before the Tribunal indicates that the applicant’s problems with her enrolment in a registered course of study in Australia commenced with her decision to stop studying at the Southern Cross University and to change her course of study. Whilst the change of location of Southern Cross University’s Sydney campus from Circular Quay to Surrey Hills is a factor that was out of her control, there is no evidence before the Tribunal to indicate that she was unable to continue her studies at the new location at Surrey Hills.

9. If the applicant decided to change her course of study from a Diploma of Business to a Diploma of Nursing, the onus was on her to firstly seek permission from the Department to do so as the Student visa was not granted to her for that purpose. Her evidence to the Tribunal is that she did not consult the Department about these issues. Secondly, the onus was on her to ensure that she met all the prerequisites for enrolling in a Diploma of Nursing before she decided to leave the Diploma of Business course. In her response to the Tribunal, she stated that her education agent informed her that her IELTS score of 5.5 was sufficient to study a Diploma of Nursing. If this is correct, she has been badly advised by her education agent. However, this does not release her from the responsibility of ensuring that she complies with the conditions of her Student visa.

10. The Conditional Letter of Offer from AIBT in relation to the Diploma of Nursing is dated 13 October 2017. The applicant should therefore have known in October 2017 that she was unable to satisfy the English language requirements to undertake the Diploma of Nursing course. The Letter of Offer from King’s Own Institute is dated 13 February 2018. Her evidence is that she was trying to enrol in a Diploma of Nursing with a different education provider thereafter. The Tribunal has not been provided with any independent evidence of this despite being given additional time after the hearing to provide further evidence.

11. The Tribunal has not been provided with a statement from the applicant’s education agent to indicate what attempts were made to enrol her in a registered course of study between October 2017 and February 2018 and subsequently. It is not clear to the Tribunal why she or her education agent thought that the same English language requirements would not be required to do the same course with a different education provider.

12. The Letter of Offer from King’s Own Institute dated 13 February 2018 is in relation to a Bachelor of Business (Management and Finance) degree. It Indicates that it is valid for 14 days and sets out the special conditions that needed to be satisfied before she would be issued with a COE. This includes providing her academic transcript from Southern Cross University for the Diploma of Business showing the results of the study from July 2017 to February 2018. This tends to indicate that the Letter of Offer was issued from King’s Own Institute on the understanding that she had completed a Diploma of Business at Southern Cross University.

13. It is not clear to the Tribunal why the applicant or her education agent thought that she would be able to enrol in a Bachelor of Business (Management and Finance) degree when she had not completed a Diploma of Business and her English language skills were insufficient to undertake a Bachelor degree. The Tribunal is of the view that these series of ill-informed or ill-advised decisions on her part led to the situation where she was in breach of a condition of her Student visa.

14. In her response to the Tribunal, the applicant stated that her mental state deteriorated at that point and she struggled to make correct decisions. She stated that there was no one around to support her during that time and she started feeling depressed. [She] stated that, after she became “fit”, she was able to make rational decisions and decided to enrol in a course and resume her studies. She stated that this cost her many months.

15. The Tribunal has been provided with a Psychological Report dated 2 August 2018 from [Mr A, Accredited Mental Health Social Worker].

16. In his Report, [Mr A] stated that she reports that her mental health is stabilising. He recommends that she be able to progress in her studies and access ongoing psychological and medical support for her mental health.

17. There are some inconsistencies between the applicant’s evidence to the Tribunal and the background information she provided  [Mr A]. In his Report, he stated that, approximately four months into her studies, in November 2017 the applicant received a letter from Southern Cross University indicating that the University was being converted to a College and the students were given the option to be released from their studies. This is not consistent with her evidence to the Tribunal or the information from Southern Cross University that the university campus in Sydney was being relocated to Surrey Hills and the students were given the option not to continue with their studies at Southern Cross University for this reason.

18. In his Report, Mr [A] stated that when the applicant arrived in Australia she adjusted relatively well to her new environment. He stated that she reported living with her aunt and aunt’s family and this assisted her with her adjustment. This is not consistent with her written response to the Tribunal in which she stated that when her mental state deteriorated, she had no one around to support her. This is also not consistent with her oral evidence to the Tribunal that she lived with her aunt and her family until approximately one month prior to the Tribunal hearing and that her aunt assisted her financially and helped her to find an education agent.

19. The Tribunal accepts that the applicant’s inability to enrol in another course after she left Southern Cross University caused her to feel stressed, anxious and depressed. [In] his Report, Mr [A] recommended that she access ongoing psychological and medical support for her mental health. Her evidence to the Tribunal is that she has not done so. She saw Mr [A] on one occasion for the purpose of obtaining a Report to provide to the Department. These factors impact on the weight that the Tribunal places on Mr [A]’s Report.

20. During the hearing, the Tribunal raised as an issue with the applicant the fact that Mr [A] had recommended that she access ongoing psychological and medical support for her mental health, but she had not done so. The Tribunal noted that it may find that she was unable to study in Australia because of her mental health, would not be able to fulfil the purpose of a Student visa and that her Student visa should be cancelled so that she could return to Nepal and get well.

21. The applicant responded that her mental health condition was not permanent. She stated that she got into a lot of problems at the same time and that was the reason why she became stressed and depressed. She stated that if she gets a Student visa she can study. She stated that she wants to study legally without problems.

22. Having had regard to all the evidence, the Tribunal does not give this consideration any weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

23. There is no evidence before the Tribunal to indicate that the applicant has not co-operated with the Department or that she has engaged in unfavourable behaviour towards the Department. The Tribunal gives this consideration some weight in her favour.   

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

24. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act. The Tribunal does not give this consideration any weight in her favour.

    Legal consequences of a decision to cancel the visa

25. If the applicant’s Student visa is cancelled, she will become an unlawful non-citizen and may be liable to detention under s.189 of the Act and removal under s.198 of the Act if she does not voluntarily depart Australia or resolve her immigration status. However, she may be eligible for a Bridging visa that would allow her lawful presence in Australia for a short period of time so that she can finalize her affairs in Australia before departing.

26. If the applicant’s Student visa is cancelled, she will be subject to s.48 of the Act which means that she will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 may prevent her from being granted particular temporary visas for a period of three years from the date of cancellation. These are the intended legal consequences of a decision to cancel a visa. The Tribunal does not give this consideration any weight in her favour.   

    Australia’s international obligations

27. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in the breach of Australia’s international obligations. The Tribunal does not give this consideration any weight in her favour.

    Any other relevant matter

28. The Tribunal is not aware of any other relevant matter.

    CONCLUSION

29. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Student visa outweigh the grounds for not cancelling her Student visa. Therefore, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    L. Symons
    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.