Singh (Migration)

[2021] AATA 1308

Singh (Migration) [2021] AATA 1308 (19 February 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parambir Singh

CASE NUMBER:  1930480

HOME AFFAIRS REFERENCE:               BCC2016/4243342

MEMBER:L. Symons

DATE:19 February 2021

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2021 at 5:02pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – Federal Circuit Court remittal –applicant had not been enrolled in a registered course – not a genuine student – father’s illness – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 9 February 2017 made by a delegate of the Minister for Immigration and Border Protection 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 had breached condition 8202(2)(a) of his Student visa as he was not enrolled in a registered course since 29 January 2016. On 13 February 2017, he applied to the Tribunal for a review of that decision.

3. The applicant appeared before the Tribunal, differently constituted, on 23 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing. On 25 February 2019, the Tribunal affirmed the decision made by the Department of Home Affairs (the Department).

4. On 26 March 2019, the applicant lodged an application for judicial review of that decision with the Federal Circuit Court. On 1 October 2019, the Federal Circuit Court remitted the case by consent to the Tribunal to be determined in accordance with the law.  

5. On 21 December 2020, the Tribunal wrote to the applicant and invited him to attend a second hearing before the Tribunal on 13 January 2021. On 8 January 2021, the Tribunal received a letter from the applicant’s migration agent indicating that the applicant wished to provide documents in relation to his case, it was taking longer than usual to obtain the “requested information” and he requested time to do so.

6. A Tribunal officer contacted the applicant’s migration agent, on the instructions of the Tribunal Member, and informed him that the request for further time to provide documents would be discussed at the hearing. On 12 January 2021, documents were provided to the Tribunal after close of business.

7. The applicant appeared before the Tribunal, differently constituted, via video link on 13 January 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

8. The applicant was represented in relation to the review by his registered migration agent, Mr Jujhar Bajwa, who attended the hearing. At the beginning of the hearing, the Tribunal asked him what documents his client wished to provide the Tribunal. He responded that he had provided the Tribunal with everything and there are no further documents that his client wished to provide the Tribunal.

9. 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

10. The issue in the present case is whether the applicant, as the holder of a Student visa, has breached condition 8202(2)(a) 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(2)(a)?

11. Condition 8202(2)(a), as it applies in this case, requires that the applicant be enrolled in a registered course. The applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course since 29 January 2016.

12. The applicant has provided the Tribunal with a copy of the Decision Record dated 9 February 2017. It indicates that he was granted a subclass 573 Student visa on 10 April 2014. This visa was subject to a number of conditions including condition 8202. On 13 January 2017, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he had breached condition 8202(2)(a) of his Student visa because he had not been enrolled in a registered course since 29 January 2016. He was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why his Student visa should not be cancelled.

13. On 16 January 2017, the applicant’s former migration agent wrote to the Department and requested an extension of time to provide a response to the NOITCC. On 17 January 2017, the delegate wrote to him and informed him that an extension of time had been granted until 8 February 2017.

14. On 6 February 2017, the applicant’s former migration agent provided the Department with a response to the NOITCC dated 1 February 2017. This response was contradictory. He initially disputed that the applicant had breached condition 8202 and stated that his enrolment had been continuing after 29 January 2016. He stated that he continued to attend North Melbourne College and study an automotive course. He claimed that he had paid fees after the date the Department stated that his enrolment had been cancelled and had attached receipts for the fees. No receipts were attached.  

15. However, later in his response to the NOITCC the applicant’s former migration agent conceded that the applicant had breached condition 8202 of his Student visa. He claimed that this was due to reasons beyond his control. 

16. The applicant provided the Department with a Letter of Offer from Front Cooking School in relation to a Certificate IV in Hospitality (Commercial Cookery) commencing 10 April 2017 and a Diploma of Hospitality Management commencing 25 September 2017. He also provided a Letter of Offer from Stott’s Colleges in relation to a Bachelor of Business degree commencing 2 April 2018. 

17. During the hearing before the Tribunal (differently constituted) on 23 November 2018, the applicant gave evidence that he had been enrolled in an English language course and a Certificate IV in Business at Bayside International English College and a Bachelor of Business degree at James Cook University in northern Queensland. He subsequently moved to Melbourne and then enrolled in a Certificate III and a Certificate IV in Commercial Cookery and a Diploma of Hospitality at the South Pacific Institute. He completed the English language course and the Certificate III in Commercial Cookery but did not commence the other courses. He tried to enrol at the North Melbourne College with the intention of studying an automotive course but was unable to do so.

18. During the hearing before the Tribunal on 13 January 2021, the Tribunal sought to clarify the applicant’s position in relation to whether he breached condition 8202 of his Student visa. He gave evidence that he was depressed when he received the NOITCC. He consulted an education agent and tried to enrol in a course but could not because of the long gap in his studies. He first consulted (his former) migration agent who misguided him. As he was suffering from depression, he was not aware that he was being misguided.

19. When asked how his (former) migration agent misguided him, the applicant responded that he sought his advice after he received the NOITCC and was misguided. When asked again how he was misguided, he responded that he did not give him any information or assist him. When the Tribunal pointed out that his former migration agent wrote to the Department on his behalf in response to the NOITCC, he responded that he told his (former) migration agent his story and that he was depressed. He tried to get a COE. A couple of his friends were studying an automotive course. He earlier stated that he never studied an automotive course and never attended North Melbourne College.

20. The Tribunal asked the applicant whether he understood that if he was not enrolled in a registered course since 29 January 2016 that was a breach of condition 8202 of his Student visa. He responded that he was not aware that he had breached condition 8202. When he consulted his (former) migration agent he made him aware that he had breached his visa condition.

21. The Tribunal asked the applicant whether he agreed that he had breached condition 8202 of his Student visa and he responded yes.

22. Having considered the evidence, the Tribunal finds that the applicant has not been enrolled in a registered course since 29 January 2016. Therefore, the Tribunal finds that the applicant has not complied with condition 8202(2)(a) of his Student visa.

    Consideration of the discretion to cancel the visa

23. Having found that the applicant has not complied with a condition of his 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 to and stay in Australia. Did the applicant have a compelling      need to travel to or remain in Australia?

24. During the hearing before the Tribunal (differently constituted) on 23 November 2018, the applicant gave evidence that he came to Australia to undertake business courses as he wanted to start a pesticide distribution business in India’s agricultural sector. He then changed his mind and studied a Commercial Cookery course. He wanted to complete a Commercial Cookery course and a Hospitality degree so he could start a business in India teaching cooking skills. He then changed his mind because it was recommended that he study an automotive course as it would give him better prospects for work.

25. During the hearing before the Tribunal on 13 January 2021, the applicant gave evidence that the purpose for which he travelled to Australia was to get an education here and a good job in India. He stated that overseas studies are “highly recognised” in India. When asked what he wanted to study, he responded that his main interest is in cooking as he likes cooking. When the Tribunal pointed out that he did not need any formal qualifications to work as a cook in India, he responded that he can work in a good hotel.

26. The Tribunal asked the applicant whether it was his intention to get a Bachelor of Business degree. He responded that it was but cooking is his passion. He thought it would give him good opportunities in India to work in big hotels. When asked whether he had ever worked in a restaurant, he responded that he had worked in a restaurant for one week in 2015. He found that it was not suitable for him as he was not able to concentrate on his studies.

27. The Tribunal asked the applicant why he did not return to his family in India if he came to Australia to study, was not studying and was having problems with depression. He responded that he was willing to go back to India but his family advised him to finish his studies. They spent a lot of money on him and wanted him to return with a Certificate so he would have job opportunities. When asked how his family expected him to complete his studies if they were not providing him with financial support to do so, he responded that he did not want to tell them he needed financial support from them as they were already under stress. When the Tribunal pointed out that they would already know that it costs money to study and live in Australia, he responded that his friends helped him with accommodation and he said it is fine. His friends helped him.

28. The applicant gave evidence that he has not studied since October 2015. The Tribunal asked him whether there was any reason why he needed to remain in Australia if he had not studied since October 2015 and had not been enrolled in a registered course since 29 January 2016. He responded that he wants to complete his studies and return to India. When asked how he would fund his studies in Australia if he had not been able to do so for 4 years, he responded that his father now has sufficient funds and he is able to do so. (He did not provide any documentary evidence to support this claim).

29. The Tribunal pointed out to the applicant that he was granted a subclass 573 Student visa to undertake higher education in Australia but he had provided a Letter of Offer to undertake vocational studies and not higher education studies in Australia. He responded that he wanted to do cookery and complete his studies. He has been away from his family and wants to return to see his family and support them.

30. The Tribunal noted that the applicant had provided the Tribunal with a conditional Offer of Enrolment dated 11 January 2021 from the Australian Institute of Technical Training in relation to a Certificate IV in Commercial Cookery and a Diploma of Hospitality. The Tribunal asked him how this was any different to the Letters of Offer he had previously provided the Department in relation to studying a Certificate IV in Hospitality (Commercial Cookery) commencing 10 April 2017 and a Diploma of Hospitality Management which he did not undertake. He responded that he did not have study rights in 2017 and was not able to study. It was difficult to get the conditional Offer of Enrolment dated 11 January 2021 from the Australian Institute of Technical Training and he can only enrol once he has study rights.

31. The records of the Department of Education indicate that the only courses the applicant has completed in Australia, since his arrival here in 2014, have been a short English language course and a Certificate III in Commercial Cookery. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that he had a poor record as a student in Australia. The Tribunal noted that his own evidence is that he has not studied since October 2015. The Tribunal noted that this may lead it to the conclusion that he is not a genuine student, he has not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled. He responded that he wishes to complete his studies and return to his country.

32. Having considered the evidence, the Tribunal accepts that the applicant initially came to Australia for the purpose of studying a Bachelor of Business degree and returning to work in India. The Tribunal accepts that he subsequently changed his mind. The Tribunal accepts that he completed an English course and a Certificate III in Commercial Cookery. The Tribunal places little weight on this as he was granted a subclass 573 Student visa for the purpose of undertaking higher education in Australia. The Certificate III in Commercial Cookery is not a higher education course nor is it part of a package of courses that would have led to him undertaking a higher education course in Australia. His evidence is that he was enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality.

33. The Tribunal finds that the applicant has not fulfilled the purpose for which he was granted the Student visa and travelled to Australia. The Tribunal is not satisfied that he has the capacity to study in Australia or that he is a genuine student. The Tribunal is not satisfied that he has demonstrated a compelling need to remain in Australia.  

34. The Tribunal gives this consideration some weight in favour of affirming the decision to cancel the applicant’s Student visa.     

    The extent of compliance with visa conditions

35. The applicant has filed with the Tribunal a copy of the Department’s Decision Record dated 9 February 2017. It indicates that he was granted a subclass 573 Student visa on 10 April 2014 and that it was valid until 3 September 2017. He has not been enrolled in a registered course since 29 January 2016. This is a substantial period of time during which he was in breach of condition 8202(2)(a) of his Student visa.

36. During the hearing before the Tribunal on 13 January 2021, the Tribunal noted that the applicant had not been enrolled in a registered course for a substantial period of time and asked him what his plan was if he had not received the NOITCC. He responded that he tried to locate an agent to find out how to proceed. Because of the gap in his studies it was difficult to get anyone to help him.

37. The Tribunal asked the applicant whether he had breached any other condition of his Student visa and he responded no. There is no evidence before the Tribunal to indicate that he has not complied with any other visa conditions.

38. Having considered the evidence, the Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s Student visa.    

    Degree of hardship that may be caused

39. The Tribunal received pre-hearing submissions dated 22 November 2018 from the applicant’s former migration agent (who was the same agent who prepared the response to the NOITCC). In his pre-hearing submissions, he submitted that the applicant’s family has spent a large sum of money on his education and continue to spend time and money on him “to stay and fight his visa cancellation”. If his visa remains cancelled, he would not be able to complete his studies, will have no study rights and will be unable to enrol himself in any course with any education provider.” If his visa remains cancelled, he would become an “unlawful citizen”, will have no permission to study and work and will have no future as far as his employment is concerned.

40. In his pre-hearing submissions, the applicant’s former migration agent submitted that if the applicant returns to India with a visa cancellation people in India would treat him differently and this would affect his capacity to mingle with friends and relatives. They would treat him as a failure and this would have a devastating effect on his future. He would have no support from family as they would consider him to have wasted their hard earned money and he would have nowhere to go. His mother has passed away and he wishes to complete his studies in Australia to make her dreams come true.

41. During the hearing before the Tribunal (differently constituted) on 23 November 2018, the applicant gave evidence that he had spent a lot of time in Australia and many of his friends in India have moved on with their studies and their lives. He claimed he will not be able to own a business without a diploma or a degree. When the Tribunal questioned this, he responded that he wanted to be a professional. When the Tribunal pointed out that he did not need a degree in cookery to run a related business, he responded that he needed to learn how to run a business.

42. The applicant gave evidence that his life plans will be disturbed if his Student visa remains cancelled and that he will not be able to fulfil his late mother’s dream that he completes his studies in Australia. He could complete his studies in India but the practical experience and the education is not so good in India and it would be more difficult to gain admission into an Indian university. His family has spent as much as $40,000.00 on his education in Australia and he has broken their trust by not advancing academically.

43. During the hearing before the Tribunal on 13 January 2021, the Tribunal asked the applicant what hardship it would cause him if his Student visa is cancelled. He responded that his wish is to complete his studies, financially support his family and help his brother.

44. On 21 January 2021, the Tribunal received a written statement dated 20 January 2021 from the applicant. In his post-hearing statement, he stated that his former migration agent provided false information, without his knowledge, to the Department in response to the NOITCC. He stated that the claim that he had a long term illness that caused him stress and anxiety and caused his family a financial set back is not true. He stated that the claim that he was enrolled in an automotive course at North Melbourne College is not true. He stated that the claim that his stress and anxiety caused him to use drugs and he ended up in Police custody is not true. He stated that his former migration agent failed to mention that his mother was diagnosed with breast cancer in January 2017.

1. In his written statement dated 20 January 2021, the applicant stated that he confronted his former migration agent after the hearing on 23 November 2018 and he then wrote to the Tribunal on 7 February 2019 to clarify the information he provided. (The Tribunal received a response dated 7 February 2019 to a letter written under s.359A of the Act). He stated that his former migration agent then only referred to the claims in relation to his drug taking and ending up in Police custody being an “administrative error” and did not correct the other incorrect information. He stated that he applied for access to information under the Freedom of Information Act and it was only after he read the documents that he became aware of most of the false claims and arguments put forward by his former migration agent.

2. In view of the above, the Tribunal has come to the conclusion that the response to the NOITCC provided to the Department and the pre-hearing submission dated 22 November 2018 and the response to the s.359A letter dated 7 February 2019 provided to the Tribunal by the applicant’s former migration agent are unreliable, should be disregarded and no weight placed on them.    

3. Having considered the evidence, the Tribunal does not accept that the applicant will not be able to own a business in India without a diploma or degree. The Tribunal accepts that his family has spent a considerable sum of money to financially support his studies in Australia and that they would suffer some loss without their expected outcome. The Tribunal accepts that the applicant would suffer emotional hardship as a result of letting his family down, letting himself down by not fulfilling his goals and being embarrassed in front of his friends and the community if he returns to India without a degree.

4. The Tribunal notes, however, that the applicant has obtained a qualification in Australia albeit not a degree but a Certificate III in Commercial Cookery which would be considered “a foreign qualification” and may assist him to find employment in India.

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

   Circumstances in which the ground for cancellation arose

6. In view of the applicant’s evidence in paragraphs 44 and 45 above and the Tribunal’s conclusions in paragraph 46 above, the Tribunal has disregarded the response to the NOITCC provided to the Department, the pre-hearing submissions dated 22 November 2018 and the response to the s.359A letter dated 7 February 2019 provided to the Tribunal by the applicant’s former migration agent. The Tribunal has instead relied on the applicant’s oral and written evidence, supporting documents provided by him and other evidence before the Tribunal.

7. During the hearing before the Tribunal (differently constituted) on 23 November 2018, the applicant gave evidence about his mother’s illness in 2016 and subsequent death, the impact of this on his ability to study in Australia and the resulting breach of condition 8202 of his Student visa. He also stated that his father was ill in 2015 and 2016 but he was now better and was working and his non-compliance with condition 8202 was also as a result of his father’s illness. He was forced by his parents to remain in Australia. He was suffering from a psychological condition, which he claimed to be depression, he took over-the-counter headache tablets (Panadol) to treat his depression.

8. The applicant provided the Tribunal with two copies of his mother’s Death Certificate and her Birth Certificate. The Tribunal (differently constituted) had concerns about the authenticity of one copy of the Death Certificate and the Birth Certificate. Following the hearing on 23 November 2018, the Tribunal (differently constituted) sent the applicant a letter dated 4 February 2019, pursuant to s.359A of the Act, putting adverse information to him in relation to the Death Certificates, the Birth Certificate, his failure to mention his mother’s illness in his response to the NOITCC and his oral evidence that he was forced by his parents to remain in Australia and took over-the-counter tablets to treat his depression. A response dated 7 February 2019 was received by the Tribunal.

9. The Tribunal (differently constituted) found that one of the Death Certificate’s provided to the Tribunal was fraudulent and made adverse credibility findings against the applicant. This Tribunal has not relied on or placed weight on those findings as the previous Tribunal relied on the response to the NOITCC provided to the Department, the pre-hearing submissions dated 22 November 2018 and the response to the s.359A letter dated 7 February 2019 provided to the Tribunal by the applicant’s former migration agent to arrive at those findings. (See reasons referred to in paragraphs 44, 45 and 46 above).

10. During the hearing before the Tribunal on 13 January 2021, the applicant gave evidence that he is from a middle class family. His father owns land and grows corn, paddy and other grain. He employs people to work on the land. His brother completed his studies in 2016 or 2017 and helps his father with his farming work. In March or April 2016, he spoke to his brother who told him that his father was “a little bit sick”. He had lifted something heavy and hurt his back. His father sought treatment from a physiotherapist and also took some tablets. He recovered from his back injury about 1 ½ years ago. (During the hearing on 23 November 2018, he stated that his father was better and was working).

11. The applicant gave evidence that a few months later he heard that his mother was not well and in January 2017 she was diagnosed with breast cancer. He found out about her diagnosis in early 2017 and became depressed. She had surgery two or three months later. He wanted to go back to India and help his family but his father told him to stay in Australia and concentrate on his studies. His family was under stress so he did not want to ask them for money. His mother passed away on 11 July 2017.

12. The Tribunal asked the applicant whether he informed his education provider about the problems he was having and seek their assistance. He responded that he had a conversation with his education provider and was told that they could wait for one or two months but they cancelled his COE after that. When asked whether he spoke to a Student Counsellor at his College, he responded that he spoke to someone at reception who told him that he could not help him. When asked whether he spoke to his Education Agent at that time and obtain some advice, he responded that he consulted his (former) migration agent. When asked if he spoke to his former migration agent at that time, he answered no. His Education Agent in India told him he could not help him. When asked if he informed the Department of the problems he was having, he responded that he was “not aware of it”.

13. The Tribunal asked the applicant whether he had ever sought treatment for depression in Australia and he responded, “not much”. His friends “pushed” him to see a doctor and he saw a “normal doctor” who did not want to give him medication as he was not “too stressed”.

14. The Tribunal pointed out to the applicant that his evidence is that he stopped studying in October 2015 which was long before his mother was diagnosed with cancer in early 2017 and passed away on 11 July 2017. He responded that his father was ill and he did not want to cause him stress by asking him to send him money. When asked why he did not get a job and support himself, he responded that he did not have the right to work full time, he tried to find a job but it was not sufficient for himself and his family.

15. The Tribunal asked the applicant how he was able to afford to support himself and instruct a migration agent. He responded that his friends and his father’s friends helped him. When asked why they did not pay his fees, he responded that his father did not want to ask family friends to help. His father asked him to complete his studies and he would support him. When asked about the inconsistency in his evidence, he responded that family friends helped to pay for his mother’s treatment but his father did not want them to support his studies. His friends helped him with his cost of living.  

16. The Tribunal informed the applicant that it was referring to the period between October 2015 and the cancellation of his Student visa. He responded that his father was sick and it cost a lot of money for his treatment. He was not able to maintain the farm in the “normal way”.

17. The Tribunal asked the applicant about the Death Certificate he provided at the last hearing. He responded that he is from a backward area where you can go to a local person in every village and get issued with a “dummy Certificate”. After that it is possible to go to an office and be issued with a “proper Certificate”. He contacted his brother and father and obtained a “dummy Certificate” which was provided at the last hearing. After that he spoke to his family and they went to the office, applied for the Death Certificate and received it.

18. For the purpose of this review, the Tribunal accepts that the applicant’s mother was diagnosed with breast cancer in January 2017 and passed away on 11 July 2017. 

19. In considering the applicant’s evidence, the Tribunal notes that in a written statement he provided the Tribunal prior to the hearing on 13 January 2021, he stated that following his completion of the Certificate III in Commercial Cookery he was supposed to commence the Certificate IV in Commercial Cookery leading to the Diploma in Hospitality. However, he was unable to concentrate on his studies due to his father’s illness and his mother’s cancer and was not able to continue his studies. 

20. The applicant gave evidence to the Tribunal on 13 January 2021 that he completed the Certificate III in Commercial Cookery and stopped studying in October 2015. This is consistent with the records of the Department of Education which indicate that he completed a Certificate III on 11 October 2015 and did not complete the Certificate IV in Commercial Cookery that he was enrolled in from 19 October 2015 to 17 April 2016. His enrolment in the Certificate IV in Commercial Cookery and the Diploma of Hospitality that followed was cancelled on 29 January 2016.

21. On 21 January 2021, the Tribunal was provided with a post-hearing written statement from the applicant in which he stated that, after he completed the Certificate III in Commercial Cookery, he commenced the Certificate IV in Commercial Cookery as per his COE and attended classes for a few months. He stated that he was unable to follow his study plan because in 2016 his father became extremely sick and, as he is the sole breadwinner in the family, they underwent financial stress. This caused him to become extremely stressed, depressed and suffer from anxiety and he could not study.

22. The applicant’s post-hearing written statement is inconsistent with his pre-hearing written statement and his oral evidence to the Tribunal on 13 January 2021. Firstly, his COE indicates that his Certificate IV in Commercial Cookery commenced on 19 October 2015 and concluded on 17 April 2016. If he commenced his Certificate IV in Commercial Cookery as per his COE and studied for a few months as claimed, he would have commenced the Certificate IV in Commercial Cookery on 19 October 2015 and stopped studying a few month later. This is not consistent with his oral evidence that he stopped studying in October 2015.

23. Secondly, the applicant gave evidence at the hearing on 13 January 2021 that in March or April 2016, he spoke to his brother who told him that his father was “a little bit sick”. He had lifted something heavy and hurt his back. His father sought treatment from a physiotherapist and also took some tablets. This is not consistent with his post-hearing written statement that his father was extremely sick and his evidence that his treatment cost a lot of money.

24. Thirdly, in his pre-hearing written statement the applicant claimed that his father’s illness and his mother’s cancer were the reasons why he was unable to continue his studies. However, in his post-hearing written statement, he claimed that it was his father’s illness that led to him stopping his studies. His oral evidence to the Tribunal on 13 January 2021 is inconsistent with both these claims. His oral evidence is that he found out from his brother that his father was “a little bit sick” in March or April 2016. This is six or seven months after he stopped studying in October 2015.

25. The applicant’s evidence is that he found out in early 2017 that his mother was diagnosed with cancer in January 2017. This is one year and two months after he stopped studying in October 2015.

26. The Tribunal notes the applicant’s evidence that his father employed people to work on his farm. It is therefore implausible that his father did not rely on his employees to look after the farm during the period he had to have physiotherapy for his back strain.

27. The Tribunal further notes that if the applicant been studying the Certificate IV in Commercial Cookery and only stopped after his father became “extremely sick” and, as a result, he became extremely stressed, depressed and suffered from anxiety as claimed, he would have already completed or been close to completing the Certificate IV in Commercial Cookery by the time he found out that his father was ill. It is also highly unlikely that he would have been allowed to commence and continue studying the Certificate IV in Commercial Cookery if he had not already paid his fees and would therefore not have had to rely on his father to pay his fees.

28. Having considered all the evidence, the Tribunal is not satisfied that the applicant was unable to continue his studies because of his father’s illness or his mother’s illness or both. The Tribunal does not accept his explanation for why he breached condition 8202 of his Student visa.

29. The Tribunal gives this consideration considerable weight in favour of affirming the decision to cancel the applicant’s Student visa. 

    Past and present behaviour of the visa holder towards the Department

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

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

31. 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.

32. This consideration is therefore not relevant in the applicant’s case.

    Legal consequences of a decision to cancel the visa

33. If the applicant’s Student visa is cancelled, he will be subject to s.48 of the Act which means he will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent him from being granted particular temporary visas for a period of three years from the date of cancellation. 

34. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa. The Tribunal gives this consideration no weight in his favour.   

    Australia’s international obligations

35. The Tribunal asked the applicant whether there was any reason why he could not return to India. He responded that the only reason is that it was his mother’s dream for him to successfully complete his studies, return to India and get a good job. He will regret it if he does not fulfill her wish.

36. 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 gives this consideration no weight in his favour.

    Any other relevant matter

37. The Tribunal asked the applicant whether there was any other reason why his Student visa should not be cancelled. He responded that he is a genuine student and wants to complete his studies. He wants to return to India and see his family as it has been a long time since he saw them. He requested that he be granted a visa so that he could complete his studies as soon as possible. He wishes to return to India.

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

    CONCLUSION

39. 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 his Student visa. Therefore, the Tribunal concludes that the Student visa should be cancelled.

    DECISION

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

    L. Symons

    
    

    Member