Silwal (Migration)

[2019] AATA 6413

Silwal (Migration) [2019] AATA 6413 (1 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sabin Silwal

CASE NUMBER:  1706930

HOME AFFAIRS REFERENCE(S):           BCC2017/713818

MEMBER:Justin Owen

DATE:1 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 01 November 2019 at 4:46pm

CATCHWORDS
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education – accounting studies – not enrolled in registered course – non-payment of fees – family illness – claimed psychological distress due to father’s health condition – lack of evidence – failed to regularise visa status or seek study rights for significant period – no compelling need to remain in Australia – decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA
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 27 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 applicant is a national of Nepal born 13 July 1988.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 8 July 2016 and was subject to condition 8202.  The visa had a stay period with a stay period until 15 March 2018.  On 17 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course since 10 August 2016.  The applicant responded to the NOICC on 23 March 2017.  On 27 March 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the visa.  The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 22 October 2019 to give evidence and present arguments.

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

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

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

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

10. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 27 March 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 10 August 2016.  At the time of the delegate’s decision of 27 March 2017 the applicant therefore had not been enrolled for a total of over 7 months. 

11. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 10 August 2016 and the delegate’s decision on 27 March 2017. 

12. The Tribunal in its questioning noted that the decision record the applicant provided stated that in the applicant’s response to the NOICC, he did not dispute that there were grounds for cancellation.  The applicant agreed that he did not dispute that there were grounds for cancellation. 

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. 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.’

15. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

16. The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia.  The applicant in response to the Tribunal’s questions replied said he travelled to Australia to study and to further his employment experience.  His first reason for travel to Australia was to study.  The applicant said he had since his arrival in 2008 previously applied for permanent residency but changes to Australia’s visa system whilst he was in Australia had proven to be an impediment to this.  The applicant talked about how he had a desire to obtain permanent residency but also still also retained a desire to return to Nepal.  He said Australia was like a second home to him.

17. The Tribunal notes the applicant’s NOICC response of 23 March 2017 (D1, Folio. 27) where he stated he had been doing well in his studies since his arrival in Australia in 2008.  He stated that he had successfully completed his Bachelor degree and had completed 18 months of work experience.  The Tribunal recognises the applicant’s educational achievements and gives some positive weight to the applicant. 

18. At the hearing the Tribunal put to the applicant his Provider Registration and International Student Management System (PRISMS) record of 21 June 2019 under s359AA.  The Tribunal noted the record indicated that the last course the applicant completed was a Bachelor of Business (Accounting) degree in July 2014; that the MBA he enrolled in due to commence in July 2016 was cancelled for non-enrolment in August 2016; that the Diploma of Leadership and Management he enrolled in due to commence in February 2018 was cancelled for disciplinary reasons in July 2018 and he was not currently holding a Certificate of Enrolment (CoE) in any course.  The applicant responded at the hearing. 

19. The applicant stated that he had not enrolled or completed any courses since his visa cancellation.  The applicant talked about his history as a student in Australia.  The applicant stated that he obtained a CoE in a Diploma of Leadership and Management at ACC in Canberra around the end of 2018 or earlier 2019 after his cancellation but did not formally enrol because he was moving to Darwin.  He said he was not enrolling and asked his agent to cancel his enrolment.  He stated his education provider demanded payment for fees and the applicant disagreed with the claim lodged on the PRISMS record that his enrolment had been cancelled for ‘disciplinary reasons’. He said he told the education provider that he was not proceeding with his enrolment.    

20. The applicant in his testimony to the Tribunal also claimed that he did not obtain a Bridging visa from the Department for around a year after the cancellation of his Student visa: meaning he was ineligible to study.  He claims to have requested the Bridging visa and visited the Department on multiple occasions.  He claims he had previously been told by Department officers that he would receive the Bridging visa automatically.  He stated that after multiple visits and telephone calls he finally received the Bridging visa about a year after the cancellation of his Student visa.  The applicant has claimed he was essentially unable to enrol and study following the cancellation of his Student visa in March 2017 because he had no visa allowing him to enrol and study. The Tribunal accepts the applicant’s claim that he was not granted a Bridging visa for about a year after the cancellation of his Student visa and that he was not lawfully permitted to study whilst he was without a visa.  The Tribunal accepts the applicant eventually did obtain a CoE after he received a Bridging visa.  Nevertheless the Tribunal does not accept the applicant’s argument that the Department’s failure to grant him a Bridging visa somehow mitigates his failure to pursue any education and study opportunities for such a significant period.  Applicants have an obligation to update the Department and inform them of any changes to their circumstances.  The applicant had every opportunity to approach the Department and inform them of his visa status and the fact that he had received no notification of any grant of a Bridging visa.  The applicant has claimed he did make multiple attempts to rectify his status with various visits to the Department and calls but the Tribunal notes there is no corroborative evidence of this contact before it.  The obligation in the Tribunal’s opinion remains with the applicant to keep himself informed of his visa status and his status regular.  The Tribunal does not accept the claimed year-long absence of a Bridging visa mitigates the lack of study during this period.  

21. The Tribunal furthermore notes the submission the applicant provided the Tribunal from Mental Health Social Worker Zaid Crouch (T1, Folio 23-25) dated 22 March 2017.  Crouch states that the applicant attended an appointment that same day where he was found to be ‘Normal’ across all the scales of ‘Depression’, ‘Anxiety’ and ‘Stress’.  Crouch stated that the applicant was ‘currently experiencing positive mental health relative to the mean for the population.’  The Tribunal notes that the applicant’s earlier claimed mental health issues had dissipated by March 2017 and his mental health was at a point, based on the medical evidence before the Tribunal, where he could return to and re-engage with his studies.  The failure to obtain a Bridging visa with study rights for such a significant period of time after the cancellation of his visa combined with the fact his mental and psychological health were in a sound shape from March 2017 leads the Tribunal to question his commitment to further higher education study.  The applicant’s actions since obtaining his Bridging visa and study rights – the attainment of a CoE that was subsequently cancelled and the lack of any evidence of a current enrolment – causes the Tribunal to question his commitment to further study and whether he has a compelling need to remain in Australia.  The fact remains that the applicant has neither formally enrolled nor completed any courses since the cancellation of his Student visa in March 2017.  The Tribunal accepts the applicant is an intelligent and articulate individual with a strong commitment to building his future.  He is currently working in accounting in Darwin and has on the evidence a sound work ethic.  The Tribunal however is not satisfied that the purpose of his stay in Australia is study and, whilst departing Australia and leaving his employment in Darwin would undoubtedly be difficult for him, the Tribunal does not consider he has a compelling need to remain in Australia.  The Tribunal is perplexed as to why the applicant failed to either confirm and regularise his visa status or seek study rights for such a significant period of time since the cancellation of his visa – and why still today he has not formally enrolled in a course of study - if he retains such a strong desire to complete his higher education studies.   On the evidence before it concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor slightly in favour of cancelling the visa. 

22. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for over seven months to be significant.  The Tribunal notes from the applicant’s oral testimony that he arrived in Australia some years ago and has held multiple visas.  The Tribunal considers he was experienced with the visa requirements and obligations for a visa holder, even if he was utilising an external agent to assist with migration matters who he claims was deficient in managing his migration affairs.  The Tribunal notes the applicant in response to the Tribunal’s questions conceded he was aware that not being enrolled in a registered course of study would impact upon his eligibility to continue to hold a Student visa.  The Tribunal is of the opinion the applicant was well aware he was not complying with the conditions of his Student visa whilst he was unenrolled in a course of study.  The Tribunal has furthermore considered the applicant’s failure to be the holder of any visa between the cancellation of his Student visa for a year until he claims to have been finally granted his Bridging visa.  The Tribunal has noted the applicant’s oral claims concerning his attempts to procure a Bridging visa but gives them little weight.  The Tribunal notes the applicant had an obligation to keep himself informed and updated as to his immigration status.  The Tribunal considers the applicant’s non-compliance with his visa conditions to be considerable.  On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa. 

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

24. In relation to hardship that may be caused to the applicant himself, the applicant said cancellation would be devastating to him.  He said he would have spent 11 years in Australia without completing his Masters.  The Tribunal asked if he could not complete his studies off-shore.  The applicant stated a Masters in Nepal was very different and the quality of educational outcomes in Australia was far superior.  The Tribunal does not accept the applicant’s arguments concerning hardship and his own educational situation.  The Tribunal notes that the applicant has previously completed a Bachelor degree and has illustrated an aptitude for study. The Tribunal notes that the applicant is not precluded from commencing or completing further studies off-shore.  The Tribunal notes his concerns about the quality of education in Nepal, yet the Tribunal considers the applicant has the ability to seek study opportunities elsewhere offshore if he is not satisfied with the quality of the Nepalese curriculum.  The Tribunal accepts that the applicant would prefer to remain in the Australian education system but that in its own right is not a reason for the Tribunal to overlook his failure to continue to meet the conditions attached to his Student visa. 

25. In terms of other areas of hardship in relation to himself, the applicant stated to the Tribunal that he does not have a wife or partner. 

26. The applicant referred to his employment as an accountant in Darwin which he clearly enjoys.  The Tribunal notes that the applicant’s previous study has been in accounting and appreciates the challenges graduates face seeking and obtaining employment in their area of study.  The Tribunal accepts that cancellation of the applicant’s visa will have an adverse impact upon his employment and cease the current experience he is building in an area where he appears to have a genuine long-term interest.  Nevertheless the Tribunal notes that the applicant’s visa was a Student visa.  It is not an employment visa.  The work rights attached to a Student visa are, in the Tribunal’s view, incidental to the visa’s core purpose which is study and education.  The Tribunal accepts cancellation of his visa will be cause hardship for the applicant in relation to his employment but again notes in the matter under review the applicant was the holder of a Student visa, not an employment visa.

27. The Tribunal has considered the hardship that might be caused to the applicant’s family in Australia.  The applicant stated he had spent a considerable time with his brother and sister-in-law in Canberra since the cancellation of his visa.  He spent time looking after his two nieces as well as helping his brother’s recovery after being badly injured in a motorcycle accident.  The Tribunal accepts that the applicant would prefer to remain in Australia close to his family members but notes the applicant now resides in Darwin whilst his brother and his family reside in Canberra.  The applicant retains the ability to remain in contact with his brother and his family in Canberra through telephone and social media whether he is in Darwin or he returns to Nepal.  The Tribunal considers the hardship in relation to the applicant’s family in Australia is limited. 

28. The Tribunal has considered hardship in relation to the applicant’s parents and other siblings.  The applicant informed the Tribunal that his parents reside in Nepal as does two of his brothers who both serve in the Nepalese Army.  He stated that cancellation of his visa would cause hardship for his family given they had invested so heavily in his education and his future and they had exhibited great faith in him.  The applicant stated his concern that cancellation of his visa could cause medical problems for his father and expressed his fear that it might cause further serious heart problems for his father.    The Tribunal accepts that the applicant’s parents and his brothers will be disappointed if the applicant’s Student visa is cancelled and he is unable to complete further studies in Australia.  That is understandable, particularly for his parents given the sacrifice they have made to further their son’s education. Given the applicant’s father, according to the applicant, visited Australia earlier this year for seven months to stay with his brother in Canberra, the Tribunal is of the opinion the applicant’s parents would be aware of the applicant’s visa issues and the possibility of his return to Nepal prior to the completion of further studies.  Whilst recognising the disappointment, the Tribunal does not consider the hardship faced by his parents and extended family with the cancellation of his Student visa to be onerous or significant.  On the evidence before it relating to the degree of hardship that may be caused to the applicant’s family, the Tribunal weighs this factor in favour of cancelling the visa. 

29. The Tribunal concedes there is a limited degree of hardship to the applicant and to a lesser extent his family but does not consider it to be either significant or onerous. 

30. The Tribunal found the applicant to be an impressive witness.  He is a bright and articulate individual and the Tribunal is not convinced any future educational progress relies entirely upon the applicant remaining in Australia.  The Tribunal acknowledges the applicant would prefer to remain in Australia to study but does not consider this a compelling reason for his visa not to be cancelled.  The Tribunal furthermore understandably has some doubts as to his commitment to further studies in Australia, given the fact that he has not formally enrolled in a course of study (a cancelled CoE notwithstanding) since the cancellation of his visa by the delegate two and half years ago.   The Tribunal considers the applicant has the capability to study, it has reservations however as to his existing commitment.          

1. At the hearing when discussing hardship, the applicant did not specifically raise the state of his current mental health and any hardship his departure from Australia might have upon his mental and psychological heath.  The Tribunal has nevertheless considered the matter in the context of hardship.  The Tribunal notes the applicant submitted to the Tribunal a report from mental health social worker Zaid Crouch dated 22 March 2017 (T1, Folio. 23-25) who held an assessment with the applicant that day and after testing found the applicant was experiencing positive mental health relative to the mean for the population.  The Tribunal notes on the evidence before it that the applicant sought Zaid Crouch’s assistance after he had received the NOICC from the Department.  In response to the Tribunal’s questions the applicant confirmed he had not undertaken any further mental health treatment since this time.  There is no mental health plan.  On the evidence before it the Tribunal does not consider the applicant’s mental health would be adversely impacted by his departure from Australia.  He has not received or sought any treatment on the evidence before the Tribunal since 2017.  There is no evidence before the Tribunal or claim that the applicant is currently suffering from any mental and psychological health issues. The Tribunal furthermore notes that if he were to return to Nepal he would have the emotional support of his parents and other family members.  The Tribunal accepts the applicant has previously sought assistance for the claimed state of his mental health with Zaid Crouch in 2017 and he received treatment a decade ago with professional counselling after his father suffered a heart attack. In the absence of further corroborative and more recent evidence pertaining to the applicant’s mental health, the Tribunal finds that returning to Nepal will not cause any particular hardship to the applicant via an adverse impact on his mental and psychological health.  On the evidence before it relating to the degree of hardship that might be caused to the applicant, the Tribunal weights this factor in favour of cancelling the visa. 

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

3. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 10 August 2016 and the delegate’s decision on 27 March 2017. The ground for cancellation arose due to the failure of the applicant to remain in a registered course of study for a total of over 7 months. 

4. The Tribunal has considered the medical documentation the applicant provided concerning his father’s heart-related health issues as well as the documentation from the applicant’s mental health social worker Zaid Crouch

5. At the hearing of 22 October 2019 the applicant outlined to the Tribunal the circumstances of the breach.  He said he was not enrolled in a course of study between September 2016 and March 2017 due to his father’s health problems which had a subsequent impact upon his own mental and psychological health.  The applicant stated that his father had faced similar health problems in 2010 which had a similarly detrimental impact upon his own mental health and his ability to study effectively.  He said that on that occasion his academic performance fell away and he sought counselling and support for his psychological health.  He stated that after his father’s health improved however, so did his own psychological state.  He said his grades subsequently improved and he successfully completed his Bachelor degree.  The applicant stated his father’s health declined in mid-2016 when his father came to Australia, necessitating his father having to depart Australia a short time into his trip.

6. The applicant said he was very concerned about his father’s health at this time.  He stated his father was going into surgery due to his heart condition.  His father’s condition he claimed essentially brought about a relapse of the same anxiety and stress he felt during his father’s previous illness in 2010.  His claim is that such stress, worry and anxiety in 2016 precipitated a situation where he was unable to maintain his enrolment in a registered course of study. 

7. The Tribunal accepts that his father has suffered from heart-related health conditions, particularly in 2016.  The Tribunal accepts the situation caused the applicant a degree of stress and anxiety.  The Tribunal does not however consider the situation adequately justifies or mitigates what it considers it to be a significant period of non-enrolment.           

8. At the hearing the Tribunal asked the applicant if he returned home to Nepal to be with his father in 2016 at this difficult period for his health.  He stated he didn’t because he didn’t want to increase the financial burden on his family.

9. The applicant told the Tribunal that as his father’s health improved so did his own state of mind.  The Tribunal notes the Zaid Crouch correspondence of March 2017 states the applicant’s mental health by this time had essentially recovered and he was well enough to resume studies.  In his oral testimony the applicant claims to be in a sound state of mind.   

10. The Tribunal accepts the applicant is particularly close to his father and accepts that his serious illness had an adverse impact upon him.  In the context of their relationship that is understandable.  The Tribunal considers the applicant is being truthful when he discusses the close relationship he now enjoys with his father and can sympathise that his illness and medical treatment caused him genuine worry at that time.  The Tribunal does not however accept that this situation precipitated a situation whereby the applicant was unable to either maintain an enrolment or seek a deferral of his studies. The Tribunal notes that the applicant sought mental health treatment in March 2017 – his appointment with Zaid Crouch - after receiving the NOICC from the Department.  The only other claim of the applicant seeking professional medical assistance for any mental health issues before the Tribunal is the applicant’s uncorroborated claim that he sought counselling and psychological assistance when his father was previously unwell in 2010.  For the purposes of this review the Tribunal accepts that the applicant did seek assistance at that time.   Nevertheless there is no evidence before the Tribunal that the applicant sought any medical assistance for his mental health during the period the applicant was not enrolled in a registered course of study until after receiving the NOICC and just prior to his visa being cancelled by the delegate. The applicant furthermore in his testimony to the Tribunal conceded that he has not received any further mental health treatment since the March 2017 appointment.   The applicant also conceded that he failed to contact the Department to discuss his situation or enquire about the consequences of non-compliance at the time he was no longer meeting certain conditions attached to his Student visa.  The Tribunal is not satisfied on the evidence before it that the claimed psychological impact of the applicant’s father’s health condition precluded the applicant from either maintaining his enrolment, contacting the Department to discuss his challenges or seeking from his education provider a deferral of his studies.   

11. The Tribunal asked the applicant if he attempted to defer his studies if he was facing such mental health issues.  The applicant said he had an agent at this time who he claims told him he didn’t need to worry about his enrolment as he had enough points to get his permanent residency through another migration pathway.  The applicant apportioned blame to his agent for not requesting a deferral, stating that he had asked the agent to request a deferral but this had never occurred.  The Tribunal notes that the obligation remains with the applicant to ensure he continues to meet the conditions of his Student visa.  The Tribunal gives the applicant’s claim that he asked his agent to request a deferral no positive weight in the absence of any corroborative evidence.

12. The Tribunal notes that the applicant has been in Australia for a significant period of time with experience across a number of visa subclasses.  The applicant agreed in response to the Tribunal’s questioning that he received a letter from the Department after being granted the Student visa and the letter outlined the conditions of the visa as well as the consequences of non-compliance.  The applicant conceded he knew that not being enrolled in a registered course of study would impact upon his eligibility to continue to hold his Student visa, but claimed he was in no condition to do anything about it.  Given the paucity of the evidence before the Tribunal pertaining to the psychological and mental health of the applicant at that time, the Tribunal gives the claim little weight.   

13. On the evidence before it the Tribunal is not satisfied that the applicant’s psychological and mental health issues precluded him from either maintaining an enrolment or, if he had been enrolled, seeking a deferral of his studies.  The Tribunal acknowledges that not all individuals suffering from mental health issues engage the assistance of medical professionals.  The Tribunal accepts that the applicant was facing a degree of stress and concern due to the health issues facing his father.  The Tribunal is not however satisfied that this situation adequately explains the applicant’s significant period of non-enrolment.  The applicant’s subsequent failure to obtain a formal enrolment over the following two and a half years – notwithstanding the applicant’s claimed issues with obtaining a Bridging visa – speaks to the Tribunal of the applicant’s desire and motivation to continue his higher education studies in Australia.  The Tribunal notes that the applicant claimed to be in a good frame of mind to recommence his studies after the improvement of his father’s health in 2017.   Notwithstanding this claim, at the time of decision the applicant has still not presented any evidence of formally enrolling in a course of study beyond a cancelled CoE from earlier in 2019.   The Tribunal does not consider the health of the applicant’s father and its claimed impact upon the applicant’s mental health mitigates the applicant’s breach of a visa condition.  The Tribunal does not consider the explanation as to why the applicant was unable to contact his education provider to seek a deferral or the Department to inform them about the change in his circumstances plausible.  On the evidence before it relating to the circumstances in which the ground for cancellation arose, the Tribunal weights this factor in favour of cancelling the visa.     

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

15. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   The Tribunal notes the applicant responded to the Department’s s.119 letter and gives this some positive weight.  The Tribunal however notes however there is no evidence of the applicant contacting the Department to inform them of his change in circumstances in relation to his enrolment.  The Tribunal notes the applicant’s claims that he made multiple visits to the Department to rectify the granting of a Bridging visa but in the absence of any corroborative evidence before it gives the claim little weight.  Whilst the Department was arguably remiss in not granting a Bridging visa at the time of the cancellation as the applicant has claimed, the Tribunal notes the obligation remains with the applicant to ensure they regularise their migration status.  The Tribunal notes that ultimately the responsibility for ensuring the applicant was actually granted a Bridging visa following the cancellation of his Student visa remains with the applicant.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa. 

16. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

17. The Tribunal has considered whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation of the applicant’s visa.  There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

18. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date.  The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.       

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

    DECISION

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

    Justin Owen
    Senior Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.