Singh (Migration)

[2020] AATA 5556

Singh (Migration) [2020] AATA 5556 (14 July 2020)

CORRIGENDUM

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Chetan Parkash Singh

CASE NUMBER:  1819199

DIBP REFERENCE(S):  BCC2018/227334

MEMBER:  L. Symons

DATE OF DECISION:  14 July 2020

DATE CORRIGENDUM

SIGNED:  29 October 2020

PLACE OF DECISION:  Sydney

AMENDMENT:  The following correction is made to the decision:

1. Front page of decision record. Remove s.431 disclaimer at the bottom of the page.

L.Symons Member

Statement made on 29 October 2020 at 1:57pm

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chetan Parkash Singh

CASE NUMBER:  1819199

HOME AFFAIRS REFERENCE:               BCC2018/227334

MEMBER:Linda Symons

DATE:14 July 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 July 2020 at 1:15pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – not enrolled in a registered course – course provider de-registered as a CRICOS provider – Australian College of Management and Technology (ACMT) – consideration of discretion – compelling need to remain in Australia – strong desire to complete degree – circumstances giving rise to non-compliance – victim of fraud – credible witness – beyond the applicant’s control – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 359AA

Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 June 2018 made by a delegate of the Minister for Immigration 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 delegate cancelled the visa on the basis that the applicant was not enrolled in a registered course of study from 30 June 2017 to 17 May 2018. The applicant applied to the Tribunal for review of that decision on 2 July 2018.

3. The applicant appeared before the Tribunal on 24 March 2020 to give evidence and present arguments.  

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

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s Student visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

6. 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 breach Condition 8202?

7. 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).

8. In the present case, the applicant was granted a subclass 573 Student visa on 15 August 2014. This visa was subject to a number of conditions including condition 8202. On 6 April 2018, the delegate sent him a Notice of Intention to Consider Cancellation (NOITCC) of his Student visa on the basis that he was not enrolled in a registered course between 30 June 2017 to 17 May 2018. 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.

9. In his response dated 12 April 2018, the applicant did not agree that there were grounds for cancellation. He also provided the Department with scanned copies of his Diploma of Business and academic transcript from Australian College of Management and Technology (ACMT). The Department of Immigration (the Department) cancelled his Student visa on 27 June 2018.

10. The applicant provided to the Tribunal a copy of the Decision Record dated 27 June 2018 from the Department of Immigration (the Department), copies of a Confirmation of Enrolment (COE) for a Diploma of Information Technology from ACMT, a COE for a Diploma of Business from Hannay Accreditation, an Offer of Admission from ACMT dated 29 March 2017 in relation to a Diploma of Business, a Transcript from ACMT dated 29 December 2017, a Diploma of Business from ACMT, a COE for a Bachelor of Business from Group Colleges Australia (GCA) from 7 May 2018 to 23 April 2021, a Medical Certificate dated 6 May 2019 from [a] Medical Centre at [Suburb 1], two prescriptions, correspondence between him and GCA, various receipts and a letter dated 29 November 2018 from the Commonwealth Bank to GCA.

11. The Tribunal received an undated written statement from the applicant and written submissions dated 28 November 2018 from the applicant’s migration agent.

12. During the hearing, the Tribunal asked the applicant whether he agreed with the Department that he was not enrolled in a registered course from 30 June 2017 to 17 May 2018. He responded that he did not agree with that. He stated that, at that time, he was studying at ACMT. He stated that the Department says that ACMT was not a CRICOS provider, but it was when he started studying his Diploma of Business there on 3 April 2017. He stated that he completed his Diploma of Business there on 31 December 2017. When asked whether there was ever a time when he was not enrolled in a registered course of study, he responded no. He stated that he was enrolled “all the time”.

13. The Tribunal has before it information from the Department of Education’s Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) that indicates that ACMT was de-registered as a CRICOS provider (02897D) on 4 July 2017. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that the Diploma of Business he claims to have undertaken and completed in December 2017 was not a registered course. The Tribunal noted that it may find that he was not enrolled in a registered course during the time he claims to have been enrolled in the Diploma of Business at ACMT and had breached condition 8202 of his Student visa.

14. The applicant responded that the course was de-registered without his knowledge. He stated that he paid the fees on time and completed the studies. He stated that he had no idea the College was de-registered. He stated that his education agent, Shobhaz, told him it was a good college. He stated that he brainwashed him.

15. The records of the Department of Education indicate that the applicant was enrolled in a Diploma of Business from 4 July 2016 to 30 June 2017. He was also enrolled in a Bachelor of Information Technology, but his COE was cancelled on 21 February 2017 for non- commencement of studies. He was not enrolled in a registered course of study from 1 July 2017 until 6 May 2018.

16. The records of the Department of Education indicate that the applicant was enrolled in a Bachelor of Business commencing 7 May 2018 to 23 April 2021 but his enrolment in that course was cancelled on 21 February 2017 for non-payment of fees. He then enrolled in another Bachelor of Business from 27 August 2018 to 1 May 2020. His enrolment in that course was deferred on compassionate or compelling circumstances. He was not enrolled in a registered course of study from 6 June 2018 to 26 August 2018 and from 17 May 2019 to 1 September 2019.

17. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may find that, as he was not enrolled in a registered course from 1 July 2017 until 6 May 2018 and from 5 June 2018 to 26 August 2018 he had breached condition 8202(2) of his Student visa. He responded that he had explained everything to the Tribunal, had provided evidence and was the victim of fraud. He stated that he will complete his course and return to India.

18. The applicant has provided some documentary evidence to the Tribunal. He has provided the Tribunal with an Offer of Admission dated 29 March 2017 from ACMT for a Diploma of Business from 3 April 2017 to 9 March 2018. This is not evidence of enrolment in a registered course. He has also provided the Tribunal with a Transcript of Competencies Achieved and a Diploma of Business dated 29 December 2017 from ACMT. These documents indicate that he was enrolled in a Diploma of Business at ACMT from 3 April 2017 and 22 December 2017 and fulfilled the requirements for a Diploma of Business on 22 December 2017. This is not evidence that the Diploma of Business he undertook at ACMT was a registered course.

19. The Tribunal prefers the evidence from the Department of Education’s CRICOS, that ACMT was de-registered as a CRICOS provider (02897D) on 4 July 2017, to the oral evidence given by the applicant. Therefore, the Tribunal finds that the Diploma of Business completed by the applicant at ACMT on 22 December 2017 was not a registered course and that he was not enrolled in a registered course from 4 July 2017 to 22 December 2017.

20. The applicant has provided the Tribunal with a COE from GCA which indicates that he was enrolled in a Bachelor of Business commencing 7 May 2018 and ending 23 April 2021. He has not provided any evidence that he was enrolled in a registered course between 23 December 2017 and 6 May 2018.

21. The records of the Department indicate that the applicant departed Australia on 31 January 2018 and returned to Australia on 6 March 2018. The Tribunal put this information to him, pursuant to s.359AA of the Act, and noted that it may find that this was why he was not studying during that period. The Tribunal noted that it does not explain why he was not studying from the time he returned to Australia on 6 March 2018 to 6 May 2018 and from 5 June 2018 to 26 August 2018. The Tribunal noted that it may find that he had not fulfilled the purpose for which the Student visa was granted to him and that his Student visa should be cancelled.

22. The applicant responded that he paid his education agent the fees and he did not pay it to GCA. He stated that the manager of GCA told him that he had been a victim of fraud. He stated that he cannot bear to hear that his Student visa is cancelled. He stated that he cannot tell his mother. He stated that he wanted time to complete his degree and return to India with pride.

23. The evidence provided by the applicant indicates that he was enrolled in a Bachelor of Business at GCA commencing 7 May 2018 and ending 23 April 2021. The records of the Department of Education indicate that his enrolment in this course was cancelled on 5 June 2018 for non-payment of fees and this tends to support his evidence that his education agent did not pay his fees to GCA. However, he has provided no evidence that he was enrolled in a registered course from 1 January 2018 to 6 May 2018.

24. On the evidence before it, the Tribunal finds that the applicant was not enrolled in a registered course from 4 July 2017 to 6 May 2018 and from 5 June 2018 to 26 August 2018 and accordingly has not complied with condition 8202(2) of his Student visa.

    Consideration of the discretion to cancel the visa

25. 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?

26. The applicant gave evidence that his intention when he came to Australia was to study. The Tribunal noted that he came to Australia in August 2014, had only completed a Diploma of Business in the five and a half years since then and that this was not a good record as a student. He agreed and stated that he had made “big mistakes’.

27. The Tribunal asked the applicant whether there was any need for him to remain in Australia. He responded that he wanted to complete his degree and return to India proudly. He has provided to the Tribunal a copy of his COE in a Bachelor of Business at GCA from 7 May 2018 to 23 April 2021. He gave evidence that he has passed nine subjects and has failed some subjects. He stated that it has been difficult for him to focus on his studies due to everything that was happening. He stated that he expects to complete his Bachelor of Business degree in August 2021. The Tribunal accepts that he has a compelling need to remain in Australia.

28. Having considered the evidence, the Tribunal accepts that the applicant’s intention when he came to Australia was to study and obtain an Australian degree. However, despite the length of time he has been in Australia, he has not completed a degree and has only completed a Diploma of Business. The Tribunal accepts that this is, at least, partly due to him being badly advised by his two education agents and being the victim of fraud committed by them. The Tribunal finds that he has not fulfilled the purpose for which he travelled to Australia.

29. The applicant is now enrolled in and studying a Bachelor of Business degree which he hopes to complete in August 2021. The Tribunal accepts that he has a strong desire to complete this degree. The Tribunal is satisfied that he has demonstrated a compelling need to remain in Australia.

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

    The extent of compliance with visa conditions

31. The Tribunal has found that the applicant was not enrolled in a registered course from 4 July 2017 to 5 May 2018 and from 5 June 2018 to 26 August 2018. His Student visa was cancelled on 27 June 2018. However, for the reasons given below, the Tribunal accepts that he was not aware that he was not enrolled in a registered course from 4 July 2017 to 22 December 2017 and that his enrolment in a registered course was cancelled on 5 June 2018 due to him being a victim of fraud. 

32. The applicant gave evidence that prior to him receiving the NOITCC from the Department he was pursuing his education agent to obtain a COE for him. He stated that he has not breached any other condition of his Student visa.

33. There is no evidence before the Tribunal to indicate that the applicant has not complied with the other conditions of his Student visa.

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

Degree of hardship that may be caused       

1. The Tribunal asked the applicant what hardship may be caused to him if his Student visa is cancelled. He responded that it would be “a big shame” for him. He stated that he is the son of a single mother and he really wants to complete his studies and make her happy. He stated that he wants to give back to her and she would be ashamed of him if his Student visa is cancelled. He stated that he would also lose a lot of money. 

2. The Tribunal accepts that the applicant was defrauded money from his two education agents and has spent a large sum of money on his education and living expenses in Australia. The Tribunal accepts that he would suffer considerable emotional and financial hardship if his Student visa is cancelled.

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

   Circumstances in which the ground for cancellation arose

4. The Department found that the applicant failed to maintain enrolment in a registered course from 30 June 2017 to 17 May 2018 resulting in the breach of condition 8202(2) of his Student visa and the cancellation of this visa. The Tribunal has found that the circumstances in which the ground for cancellation arose are that the he was not enrolled in a registered course from 4 July 2017 to 6 May 2018 and from 5 June 2018 to 26 August 2018.

5. In his response to the NOITCC, the applicant stated that when he arrived in Australia, he enrolled in a program of courses which consisted of a Diploma of Information Technology at the Australian College of Technology followed by a Bachelor of Information Technology at the University of Canberra commencing 4 August 2016. He stated that in 2016 the arrangement between the Australian College of Technology and the University of Canberra ended and the students were given the options to continue the program on their own or apply for a refund of their tuition fees and move to another higher education provider.

6. In his response to the NOITCC, the applicant stated that he consulted an education agent named Mr Pramod Kumar to help him find another education provider where he could complete his Diploma of Information Technology and then commence a Bachelor degree. He stated that he was advised to study a Diploma of Business followed by a Bachelor of Business degree at the Australian Institute of Higher Education as that would be good for his career. He stated that he trusted Mr Pramod Kumar and gave him the money to pay for his tuition fees and obtain COEs for a Diploma of Business and a Bachelor of Business.

7. In his response to the NOITCC, the applicant stated that when Mr Pramod Kumar gave him the COE for the Diploma course shortly before he commenced the course it was with the education provider Hannay Accreditation. He stated that he was told that he would receive a COE for the Bachelor of Business shortly. He stated that he kept contacting Mr Pramod Kumar in relation to the COE for the Bachelor of Business and he kept saying he needed more time. He stated that he subsequently found out that Mr Pramod Kumar had left the country and he was the victim of fraud.

8. In his response to the NOITCC, the applicant stated that there were challenges studying at Hannay Accreditation. He stated that the students were initially told that all assignments had to be uploaded through the portal, but it never functioned and they had to submit the assignments manually. He stated that sometimes the assignments went missing. He stated that in about March 2017 he decided to change to a different education provider and consulted Auscan Education and Migration Services Pty Ltd. He stated that they helped him to enrol in a similar program with a Diploma at ACMT and a Bachelor degree at GCA.

9. In his response to the NOITCC, the applicant stated that he commenced the Diploma at ACMT on 3 April 2017. He stated that although he paid the fees, he did not receive a COE. He stated that whenever he inquired about it, he was told by the administration that he would receive it in the following week. He stated that other students had the same problem and he assumed that he would receive the COE in due course. He stated that in about October 2017 ACMT informed students that ACMT was moving from Sydney to Parramatta and students were given the opportunity to finish their program earlier.  He stated that new students were given the option to either obtain a refund of their fees or move to another College temporarily as their premises in Parramatta were not ready. He stated that he opted to finish his course earlier instead of in April 2018. He stated that he hoped to commence his Bachelor degree earlier.

10. In his response to the NOITCC, the applicant stated that he completed his Diploma of Business at ACMT on 22 December 2017 and asked his education agent to help him obtain a Letter of Offer from GCA so that he could commence his Bachelor of Business degree in January 2018. He stated that in January 2018 his mother was hospitalised, and he travelled to India on an urgent basis. He stated that he asked his education agent to defer the commencement of his degree. He provided the Department with a Letter of Offer from GCA to undertake a Bachelor of Business degree from 16 January 2018 to 11 December 2020. He stated that he had no intention of breaching a condition of his Student visa and is a genuine student. He stated that he was defrauded by an education agent and an education provider.   

1. The applicant provided the Tribunal with a written statement. In his statement, he stated that after Mr Pramod Kumar defrauded him, he consulted another education consultancy and instructed a man named Mr Shahbaz Hossain. He stated that Mr Hossain befriended him, invited him to his home for tea and dinner and treated him like a brother. He stated that he trusted him. He stated that he gave Mr Hossain $4,500.00 to pay for his first semester fees for a Bachelor of Business degree at GCA. He stated that he subsequently found out that he never paid the fees even though he told him that he had.

2. In his statement, the applicant stated that when he found out the fees had not been paid to GCA he contacted them, but it was too late as he had missed the January 2018 intake and had to wait until May 2018. He stated that he told Mr Hossain that he had to pay the fees to GCA for his May 2018 enrolment. He stated that he then received the NOITCC from the Department and was surprised to read that he had not been enrolled in a registered course since 30 June 2017. He stated that he spoke to Mr Hossain who told him that it was not possible. He stated that they had an argument. He stated that Mr Hossain told him he would help him and undertook to write to the Department on his behalf. He stated that Mr Hossain asked him for $800.00 to write a letter to the Department.   

3. In his statement, the applicant stated that he was desperate about his future, had nowhere to go and trusted Mr Hossain again. He stated that Mr Hossain asked him for his email address and password to write the letter to the Department. He stated that he did not provide him with a copy of the letter he wrote to the Department. He stated that he told him that everything was fine. He stated that he thereafter received an email from GCA telling him that his fees had not been paid and his COE was cancelled. He stated that he contacted Mr Hossain who sent him a receipt. He stated that when he showed the receipt to GCA he was informed that it was a fake receipt and he would have to pay the fees. He stated that he spoke to the Marketing Manager at GCA who told helped him to enter into a payment plan to pay his fees.

4. In his statement, the applicant stated that on 27 June 2018 he received an email from the Department informing him that his Student visa had been cancelled. He stated that the Department said that ACMT was not a CRICOS provider during part of the time he was studying there. He stated that Mr Hossain had once again let him down. He stated that when he tried to contact Mr Hossain by telephone, he had changed his telephone number. He stated that when he tried to contact him on Facebook Messenger he was told that he was out of the country. He stated that one of his friends took him to his migration agent who helped him to lodge an application for review with the Tribunal.

5. In his statement, the applicant stated that he is currently studying at GCA. He stated that he has had a number of health issues including [Condition 1] and [Condition 2] because of all these problems. He stated that he consulted a doctor who has put him on [medication]. He stated that he is trying to get through his problems because he is a genuine student and wants to complete his studies before he returns to India. He stated that he is a victim of fraud and manipulation by people like Mr Hossain.

6. The applicant provided the Tribunal with a number of documents including receipts for money he had paid to Mr Pramod Kumar and Mr Shahbaz Hossain at Auscan Education and Migration Services Pty Ltd to pay for his fees. He provided the Tribunal with a copy of the “fake receipt” provided to him by Mr Shahbaz Hossain and a letter from GCA thanking him for the receipt and indicating that no such payment had been received. He provided a copy of a letter from the Commonwealth Bank to GCA indicating that a cardholder had disputed a transaction and the transaction had been reversed.

7. The applicant also provided the Tribunal with correspondence between him and GCA in which the Marketing Manager at the GCA Admission Centre referred to him being the “victim of a scam” and advising him to pay his fees directly to the GCA bank account in the future and not through an agent. He provided the Tribunal with a Medical Certificate from [a] Medical Centre at [Suburb 1] which states that he was examined on 6 May 2019 and was suffering from symptoms of [Condition 2] and [Condition 1]. It states that he is not [able] to study and should take up to 8 weeks to recover and undergo [treatment]. He provided copies of prescriptions.

8. During the hearing, the applicant gave evidence that when he was studying at Hannay he completed a Diploma of Business. He stated that Hannay would not provide him with his transcript because he had outstanding fees. He stated that he gave the fees to Mr Hossain to pay Hannay but he did not pay them the money. He stated that Hannay asked him for over $3,000.00 to give him a transcript. He stated that he also gave Mr Hossain the fees to pay GCA and he did not pay them the fees.

9. The applicant gave evidence that after he paid his fees for GCA to Mr Hossain, he then used someone else’s credit card to pay the fees to GCA. He stated that the cardholder of the credit card made a complaint to the Police. He stated that the Police said the money had to be refunded. (The letter from the Commonwealth Bank dated 29 November 2018 indicates that there was a dispute about a transaction and the transaction had to be reversed). He stated that this was the last time that he had contact with Mr Hossain. He stated that Mr Hossain took his money and money from other students like him and fled to India where he has opened his own business. He stated that Mr Hossain made a fool out of him and he lost a lot of money and time. He stated that he just wants to complete his studies and return to India.

10. The Tribunal asked the applicant why he trusted Mr Hossain and kept giving him money. He stated that Mr Hossain presented himself as someone who would rescue him from the consequences of the fraud he suffered at the hands of Mr Pramod Kumar. He stated that he kept telling him that he was like his younger brother and he trusted him. He stated that it was not until he spoke to the Marketing Manager at GCA that he realised that he could pay his fees direct to his education provider and did not have to pay it through an education agent. He stated that he has not reported Mr Pramod Kumar or Mr Shahbaz Hossain to the Police but intends doing so when he is able to get his life back on track. He stated that he did not speak to the Department about the problems he was having.  

11. The applicant presented as a credible witness and the Tribunal generally accepted his evidence. The Tribunal is of the view that his naivety, lack of life experience and lack of support in Australia made him more trusting and reliant on two of his countrymen (Mr Pramod Kumar and Mr Shahbaz Hossain) than he should have and this, to a large extent, led to his current predicament. This does not, however, absolve him of his responsibility to ensure that he complied with the conditions of his Student visa and fulfilled his responsibilities to his education providers.  

12. The Tribunal is of the view that, since he commenced his studies in Australia, the applicant has unfortunately been caught up in a series of problems with education providers servicing overseas students that were beyond his control but impacted on his studies here. This commenced with the termination of the agreement between the Australian College of Technology and the University of Canberra. This meant that he was unable to transition from a Diploma of Information Technology at the Australian College of Technology to a Bachelor of Information Technology at the University of Canberra and had to change education providers. This was followed by the de-registration of ACMT as a CRICOS provider on 4 July 2017 after he commenced his studies there and the failure of ACMT to inform students of this.

13. The Tribunal accepts that the applicant was not aware that ACMT was de-registered as a CRICOS provider after he commenced his Diploma of Business there and only became aware of this when he received the NOITCC. The de-registration of ACMT as a CRICOS provider is a matter that was out of his control. The Tribunal accepts that he was not aware, until it was too late, that Mr Hossain had not enrolled him in a Bachelor of Business degree at GCA in January 2018 and paid his fees after he had instructed him to do so and given him the money for his fees. The Tribunal accepts that, after he was enrolled in the Bachelor of Business degree at GCA in the second semester of 2018, he was not aware that Mr Hossain had not paid his fees until his enrolment was cancelled.

14. The Tribunal accepts that the applicant did not breach condition 8202 of his Student visa knowingly and intentionally. The Tribunal places weight on the fact that he completed a Diploma of Business and has continued to study his Bachelor of Business degree. The Tribunal accepts that he is a genuine student and intends completing his degree. 

15. Having had regard to all the evidence, the Tribunal gives this consideration some weight in the applicant’s favour.

    Past and present behaviour of the applicant towards the Department

16. 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.

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

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

18. 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.

19. The Tribunal does not give this consideration any weight in the applicant’s favour.

    Legal consequences of a decision to cancel the visa

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

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

22. The Tribunal does not give this consideration any weight in the applicant’s favour.   

    Australia’s international obligations

23. The Tribunal asked the applicant whether there was any reason why he could not return to India and he responded no. He stated that he wants to complete his studies and return to India.

24. 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.

25. The Tribunal does not give this consideration any weight in the applicant’s favour.

    Any other relevant matter

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

27. The Tribunal has considered the written submissions dated 28 November 2018 from the applicant’s migration agent.

    CONCLUSION

28. Having considered all the evidence cumulatively, the Tribunal is of the view that the applicant’s Student visa should not be cancelled.

    DECISION

29. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    L. Symons
    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.