Singh (Migration)

[2024] AATA 652

Singh (Migration) [2024] AATA 652 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ranjot Singh
Mrs Ramanpreet Kaur
Mr Manditt Singh

CASE NUMBER:  2219229

HOME AFFAIRS REFERENCE(S):          BCC2022/4146315

MEMBER:Christine Kannis

DATE:18 March 2024

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 18 March 2024 at 12:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – COVID pandemic, mental health, drug use and treatment – criminal conviction and community service – study history, including multiple cancellations – new enrolment made after receiving department’s notice – current/future study/work goals – currently in third country visiting family member – members of family unit wife and child – consequential cancellation of visas with no jurisdiction to review – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 348, 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
Education Services for Overseas Students Act 2000 (Cth), s 19(3)

CASE
Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 December 2022 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the first named visa applicant  (the applicant) failed to comply with a condition of his 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.

3. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

5. The applicant appeared before the Tribunal by MS Teams video on 11 March 2024 to give evidence and present arguments. The Tribunal also received evidence from the second named applicant, Mrs Ramanpreet Kaur. 

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 (Cth) (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. On 18 August 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

9. 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 full-time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)

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

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

10. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

11. In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course.

12. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

13. The information from PRISMS shows that the applicant was not enrolled in a registered course from 7 July 2022.

14. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 7 July 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

15. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

16. 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’, as set out below.

17. On 19 October 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 7July 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa.

    Response to NOICC

18. On 25 October 2022, the applicant responded to the NOICC and provided the following information:

    ·He was continuing his studies efficiently when he was granted his student visa but life didn’t go well during COVID-19 and he kept changing jobs where he met new people and made new friends who gave him new habits good and bad and with loss of work he fell into bad company with drug usage.

    ·Because of depression and the stress of work-family life balance, he fell for the wrong way in life. Earlier he thought it was just a stress buster but after that his drug use increased and he failed to manage his daily life, his studies and his family.

    ·He completed his diploma studies and was about to start his advanced diploma studies but he had no motivation to study and ruined his life with drugs. His wife was supportive until she became aware of his situation but by this time he had was addicted to drugs and experienced withdrawal symptoms when not using. His life was out of control.

    ·His wife tried to help him but she had a small kid. He stopped working and studying and stopped paying attention to anything in his life.

    ·He developed signs of substance misuse such as difficulty meeting responsibilities, withdrawing from activities or not enjoying activities e.g. work, family, hobbies and experienced depression and anxiety.  His behaviour changed and created conflict with his family as he was trying to push his wife away but she tried to help him in getting professional help and his life is back on track. Recovering from one situation he forgot his other responsibilities as a student and to help him they moved from Melbourne to Perth.

    ·His life is slowly getting back on track with the help he is receiving.

    ·He has been trying to fix his life and pay for his mistakes. His mother came from India to support him.

    • He has enrolled in a new college and will be complying with his visa conditions.  

19. At the time of responding to the NOICC, the applicant provided documents including but not limited to the following:

    ·CoE for Diploma of Leadership and Management created on 25 October 2022;

    ·CoE for Advanced Diploma of Leadership and Management created on 25 October 2022;

    ·Letter dated 2 June 2022 from First Step Addiction and Mental Health setting out the applicant’s 6 appointments in the period from 18 June 2021 to 12 April 2022; and  

    ·Drug Dispensed Report for applicant for Methadone treatment printed by Wizard Pharmacy Kelmscott Stargate showing methadone dispensed in the period from 23 March 2022 to 17 July 2022.  

20. On 30 November 2022, the applicant provided the following information:

    • He has gone to India because he wanted to take a break from everything that has happened over the past years. He needed to go back to recover and spend time with his relatives. He wished to explore his homeland by going to a meditation retreat or going to the mountains. His son wanted to be with his grandma and to visit India again, so he is here with him now. He wished to take some time to himself to reflect on his mistakes and will return to Australia at the end of January 2023 to commence his studies so he can provide a better future to his family.

21. On 2 December 2022, the applicant provided the following information:

    • It is said a successful person is not the one who runs for success for money instead  is     the one who runs to seek knowledge and education. It is the level of education and knowledge that helps a person to be a respectful and recognized  person in a society. He has recovered from the troubling situation and wants to make right choice for himself and his family. He will return to Australia and complete his studies and will return to his home country for better career pathways.

    ·He completed his light vehicle motor mechanic studies in 2019 and started gaining experience as    a motor mechanic in Australia. He would like to pursue studies in leadership management and gain management skills and the diploma of leadership management course will help him learn to manage operational plans and lead and manage individual and team relationships in the workplace. The Advanced Diploma develops strategic leadership skills including managing finances, leading organizational change, and developing and implementing business plans.

    ·He wants to  grab some managerial skills in project scope management, scheduling, cost control, risk management, business case writing and contract management etc. He selected Gills college due to its well-designed courses and reputation. Gills college focuses on educating students and also enables them to gain hands-on skills by encouraging participation in internships and activities. Gill Institute is also a Registered Training Organization which facilitates students to get training     as assessment in courses which are recognized by the Australian Qualifications Framework and Australian Vocational Education and Training Sector. It will benefit him in his professional career due to having a multicultural and diverse environment in both academics and industry. He will get a chance to communicate and work with people from diverse backgrounds which is the utmost desire  to choose Australia as a place to live and learn. He loves residing in Australia due to the lively and supportive environment which will boost his confidence and vision to absorb needed attitudes toward his professional career  when he returns to his home country and starts applying for automobile companies. Diploma in leadership will provide a good understanding of business operations, ethics, approach and management. He is trying to polish his skills toward entrepreneurship.

    ·He has worked with clients as a mechanic but hasn’t done supervisor jobs which involved teamwork, verbal communication, business negotiations and management along technical skills because he was lacked confidence and managerial skills. To date he has worked with teams to analyse cost, time and gather other project requirements and he is eager to learn by himself. He is a focused student and a keen learner and wants to complete his studies. After completion he would land a good job in India with a growing automotive industry. Companies that hire automotive graduates include Suzuki, PSA Peugeot-Citroen Skoda Volkswagen and General Motors. In India, automotive engineering graduates are hired as Senior Production Engineers, Quality Engineers, Mechanical Design Engineers, Driver Instrumentation Engineers etc. in the following automotive manufacturing companies: TELCO, L & T, Ashok Leyland Mahindra & Mahindra  Bajaj Auto

    ·A bright future in the automotive graduate is a guarantee. There are plenty of employment opportunities for qualified individuals in this constantly developing field.

22. On 8 December 2022, the applicant’s partner provided the following information:

    I will be also returning back with my husband it’s just I travelled previously to india recently but he couldn’t travel with us so he travelling now once he is back completed his studies will all go back to our home country.

    Evidence at hearing

23. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record,  he was enrolled in the following courses of study:

    ·He was enrolled in an Advanced Diploma of Engineering Technology which was cancelled on 27 May 2014 due to Change to CoE/Student Details.

    ·He was enrolled in an Advanced Diploma of Engineering Technology which he finished on 31 May 2016.

    ·He was enrolled in a Certificate III in Light Vehicle Mechanical Technology which was cancelled on 24 May 2016 due to Change to CoE/Student Details.

    ·He was enrolled in an Advanced Diploma of Engineering Technology which was cancelled on 14 September 2016 due to Non-payment of fees.

    ·He was enrolled in a Bachelor of Engineering ( Mechanical Engineering) which was cancelled on 14 September 2016 due to Non-commencement of studies.

    ·He was enrolled in a Certificate III in Light Vehicle Mechanical Technology which was cancelled on 15 November 2016 due to Deferment/Suspension-Compassionate or compelling circumstances.

    ·He was enrolled in a Certificate IV in Automotive Mechanical Diagnosis which was cancelled on 15 November 2016 due to Change to CoE/Student Details.

    ·He was enrolled in a Diploma of Automotive Technology which was cancelled on 15 November 2016 due to Change to CoE/Student Details.

    ·He was enrolled in a Certificate III in Light Vehicle Mechanical Technology which he completed on 21 October 2017.

    ·He was enrolled in a Certificate IV in Automotive Mechanical Diagnosis which he finished on 19 March 2018.

    ·He was enrolled in a Bachelor of Business which was cancelled on 5 December 2018 due to Non-commencement of studies.

    ·He was enrolled in a Diploma of Automotive Technology which he finished on 13 December 2018.

    ·He was enrolled in a Diploma of Leadership and Management which he finished on 23 January 2022.

    ·He was enrolled in a Diploma of Leadership and Management which was cancelled.  

    ·He was enrolled in an Advanced Diploma of Leadership and Management which was cancelled on 7 July 2022 due to non-commencement of studies.  

    ·He was enrolled in an Advanced Diploma of Leadership and Management which was cancelled on 26 June 2023 ? due to non-commencement of studies.  

24. The Tribunal explained to the applicant that this information was relevant because it indicates that from 7 July 2022 until he received the NOICC, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.

25. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records. The applicant told the Tribunal that he agreed with the information in PRISMS.

26. The Tribunal asked the applicant about the information provided in the NOICC response in relation to the difficulties he experienced as a result of his drug use. He said he first used illicit substances in 2016 and in 2017 he was prescribed methadone as treatment for his substance misuse. The applicant said he continued taking methadone until December 2021 when his doctor went on holidays for one month and his usual pharmacy was closed due to public holidays. He said these factors resulted in him missing three methadone doses and starting to use illicit substances again including methylamphetamine. The applicant said his substance misuse from January 2022 caused him to stop paying attention to his studies and his work.

27. He told the Tribunal he worked with IKEA delivery drivers from January 2021 to January 2022. He said he and his wife each worked 20 hours per week as cleaners throughout 2022.

28. The Tribunal put to the applicant that he would have known from 7July 2022 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response, the applicant conceded that he was aware of his non-compliance but said his whole attention was on his substance misuse and he was irresponsible with respect to his study. The Tribunal asked the applicant whether he contacted the Department when his enrolment circumstances changed. He said he did not contact the Department because he thought that if he went to his doctor, his drug problem might go away and he would be able to return to his studies. He said he was also having problems with his wife and his son at that time and that caused his illicit substance use to increase. The Tribunal asked the applicant whether he contacted his education provider to seek a deferment of study on compassionate grounds. In response, he said he did not because at that time he had left his studies behind and couldn’t talk about them.

29. The Tribunal noted that when he responded to the NOICC, he provided documents from First Step Addiction and Mental Health and Wizard Pharmacy Kelmscott Stargate which evidenced appointments in the period from 18 June 2021 to 12 April 2022 and methadone dispensed in the period from 23 March 2022 to 17 July 2022. The applicant confirmed that he attended the appointments and had the prescriptions filled in the periods stated. He said however that he continued using methylamphetamine until August 2023 when he most recently departed Australia.

1. The applicant contended that he ceased to be enrolled and was unable to enrol in a course after 7 July 2022 because of his substance misuse. The Tribunal noted that on 18 October 2022, the Department’s Character and Cancellation Branch sent the applicant an email regarding verification of his contact details. The Tribunal noted that the applicant provided a CoE for a Diploma of Leadership and Management course which was created on 25 October 2022, within days of the Department’s email.

2. The delegate noted that after receiving the NOICC, the applicant enrolled in a Diploma of Leadership and Management at Gills College which was due to commence on 7 November 2022 however on 6 November 2022 he departed Australia.  In response to the Tribunal asking the reason he left Australia one day before the commencement of a new course, the applicant said he needed to return to India for treatment. He returned to Australia on 15 December 2022 however said on his return he had problems with his wife insofar as she was not co-operating with him. In response to the Tribunal asking how he supported himself after his return to Australia on 15 December 2022, the applicant said he used money his family in India had given him and his wife was working 20 hours per week as a cleaner. He stayed in Australia until August 2023 when he travelled to Canada to visit his sister, where he currently remains. In response to the Tribunal asking how he spent his time in Australia from 15 December 2022 to August 2023, the applicant said he wandered around with friends and competed community service in relation to an assault conviction. His wife was the victim of his offending.

3. When asked about the purpose of his travel to Australia, the applicant told the Tribunal that he came to Australia to study and he applied for the visa the subject of this review to obtain business qualifications. He said he has job experience and once he acquires 5 additional points he can apply for permanent residency in Australia.

4. When asked whether there is a compelling need to travel to Australia, the applicant said there is no compelling need but he spent 8 years in Australia and life is better in Australia than in his country.

5. When asked about the hardship that may be caused by cancellation of the visa, the applicant said he doesn’t have any other way to lead a better life other than in Australia.

6. The Tribunal asked the applicant about his current family circumstances. He said his wife joined him in Canada in January 2024. He said his sister put in him contact with some doctors in Canada and he is now back on methadone and has stopped using any other drugs. The applicant said his son, the third named visa applicant, has been living with his grandparents in India for the past 15 months and there are no current plans to reunite the child with his parents.

7. Noting that the information provided by the applicant on 2 December 2022 and by his wife on 8 December 2022, referred to him returning to India after completion of his studies in Australia, the Tribunal asked him about his oral evidence that he wants to apply for permanent residency in Australia. In response he said when he provided the information on 8 November 2022 he was not thinking clearly due to his drug use. The Tribunal notes that the information provided on 8 November 2022 was considered and detailed.

8. Mrs Kaur, the second named applicant, told the Tribunal that she and the applicant want to return to Australia because it is a better life here for them. She said the applicant has taken his medicine and he is better and wants to finish his studies.

9. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

   The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

10. The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 3.5 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.

11. The Tribunal questioned the applicant as to whether there was a compelling need for him to travel to Australia. In response, he said he said there was no compelling need but life is better in Australia. Whilst the applicant’s evidence demonstrated a clear preference to reside in Australia, the Tribunal does not consider this constitutes a compelling need.

12. The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

13. The applicant has not complied with condition 8202 of his student visa because  he has failed to maintain enrolment in a full-time registered course of study from 7 July 2022 to 25 October 2022.

14. In addition, the applicant enrolled in a new course of study which commenced on 7 November 2022 however he was not in Australia on 7 November 2022 to commence this course and there was nothing before the Tribunal to indicate that he commenced studying in line with the conditions of his Student visa. His evidence at the hearing was that after returning to Australia on 15 December 2022, he wandered around with friends and completed community service for an assault conviction. The non-compliance with visa conditions from 7 July 2022 to 25 October 2022 (no enrolment) and, based on the applicant’s evidence, his failing to undertake study from 7 November 2022, weigh in favour of visa cancellation.

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

15. The Tribunal accepts that the cancellation of the applicant’s visa may cause him hardship insofar as he may not be able to apply for permanent residency in Australia. In addition, the Tribunal notes that the applicant said he had resided in Australia for 8 years. Given this, it is likely that he has some personal ties with Australia however there was no evidence with respect to those ties and based on his evidence, at least some of his personal ties are unlikely to be pro-social ties. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

16. The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 3.5 months prior to the issuing of the NOICC. He told the Tribunal that this was due to illicit substance use.

17. The applicant’s evidence was that he first used illicit substances in 2016 and in 2017 he commenced methadone treatment. He told the Tribunal he resumed illicit substance use in January 2022 because his doctor was on holiday and his pharmacy was closed. The Tribunal does not accept these reasons for returning to illicit substance use. He was unclear about when he restarted methadone but said he continued taking methylamphetamine while on methadone until he departed Australia in August 2023. The documents provided with his NOICC response and his oral evidence indicated he attended appointments First Step Addiction in the period from 18 June 2021 to 12 April 2022 and had methadone dispensed in the period from 23 March 2022 to 17 July 2022.

18. The Tribunal accepts that the applicant’s illicit substance use was the reason he did not maintain enrolment in a registered course. However his evidence was that he maintained employment of 20 hours per week throughout 2022 including at the time he ceased to be enrolled in a registered course. Therefore, despite the claimed lack of motivation towards his studies and work, the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder.

19. When the Tribunal put to the applicant that he would have been aware that he wasn’t complying with a condition of his visa during the 3.5 months he remained in Australia as the holder of a student visa and wasn’t studying, he said he was aware of his non-compliance but said his whole attention was on his substance misuse and he was irresponsible with respect to his study. He did not contact the Department. It is the responsibility of visa holders to notify the Department of changes in their circumstances that affect their visa and remain compliant with visa conditions. 

20. The applicant said he did not  request a deferment of study on compassionate grounds because at that time he had left his studies behind and couldn’t talk about them.

21. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he failed to maintain enrolment, which he said was due to a lack of motivation towards his studies arising from his illicit substance use. The applicant’s illicit substance use commenced in 2016 and, based on his evidence, he was successfully treated until at least December 2021. As noted, the Tribunal does not accept that his doctor’s holiday and a pharmacy closure caused him to resume illicit substance use including methylamphetamine. His decision to resume illicit substance use and start using methylamphetamine was a choice and given his prior history of illicit substance use and treatment, he would have been aware of the consequences. The Tribunal places weight on the applicant’s continued employment during the period he claimed to have lacked motivation to study or work because of his drug use. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

22. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

23. The applicant’s partner and son are the secondary visa holders. Cancellation of the applicant’s visa means they will be subject to consequential visa cancellation of their visas.

24. The Tribunal accepts that there would be consequential cancellations in this case.  The Tribunal gives this factor some weight against exercising its discretion to cancel the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

25. The Tribunal is mindful that a cancellation can lead to an applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. However , the applicant is currently in Canada. He has been there for 7 months and said he expects to remain there for at least another 2 months.

26. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that  he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

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

27. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

28. The applicant is a citizen of India and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. The Tribunal considers this factor neutral in the exercise of its discretion.

29. The Tribunal has considered Article 3 of the Convention on the Rights of the Child (CRC) which requires that in all actions involving children, the best interests of the child shall be the primary consideration. The Tribunal has also considered the family unity principles under International Covenant on Civil and Political Rights (ICCPR). In this case, the applicant has one dependent child. The Tribunal considered whether to cancel or not cancel the applicant’s visa would be in the child’s best interests. The Tribunal accepts that the best interests of the child require that the child not be separated from his/her parents and in the present case the applicant told the Tribunal that his child is in India with his grandparents where he has been for 15 months and there are no current plans to reunite the family. In these circumstances, the Tribunal considers that any cancellation outcome would not result in a breach of Australia’s international obligations under the CRC or ICCPR.  The Tribunal gives this consideration no weight against cancellation.

    Any other relevant matters

30. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

31. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not be in breach of Australia’s international obligations. The Tribunal accepts that the cancellation will affect the second and third named visa applicants’ visa. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

32. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

    The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.

    Christine Kannis
    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.