Singh (Migration)

Singh (Migration) [2019] AATA 4110 (6 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Daljit Singh
CASE NUMBER:  1718738
HOME AFFAIRS REFERENCE(S):           BCC2017/1924370
MEMBER:Michael Biviano
DATE:6 August 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 06 August 2019 at 3:25pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – PRISMS records – inactive status – consideration of discretion – substantial period of non-enrolment – credibility concerns – inconsistent evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 16 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not been enrolled in a registered course of study from 5 February 2017. The delegate went on to consider that the factors in favour of cancellation outweighed those against cancellation. The delegate decided to cancel the visa.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 5 April 2019 to give evidence and presented arguments.
At the hearing the applicant provided a substantial amount of documentation in support of his application for review including:
·Email dated 1 September 2018 confirming that the applicant had completed a Certificate III in Light Vehicle Mechanical Technology at Australian Education Academy;
·Letter from Victoria Police dated 26 January 2018;
·Invoice from the Alfred dated 23 August 2017 for the amount of $1470.00;
·Invoice from Eastbrooke Family Clinic Noble Park dated 15 August 2016 in the amount of $37.05;
·Invoice from Eastbrooke Family Clinic Noble Park dated 18 July 2016 in the amount of $72.00;
·Letter from Dr Martin Hartnett of Eastbrooke Family Clinic Noble Park dated 15 August 2016 (Hartnett Report);
·Photographs of news reports of a motor vehicle collision;
·Death certificate dated 30 January 2018;
·Psychological Reports of Edwin Kleynhans dated 4 August 2017, 15 August 2017 and 2 April 2019;
·Victorian driver’s licence for the applicant;
·Passport extract for the applicant;
·Confirmation of Enrolment certificates for the applicant for:
i.Certificate III in Light Vehicle Mechanical Technology at Australian Education Academy for the period 20 July 2015 to 16 July 2016;
ii.Certificate IV in Automotive Mechanical Diagnosis at Australian Education Academy for the period 18 July 2016 to 4 February 2017;
·Allianz Overseas Student Health Cover Card; and
·Receipt from Australian Education Academy Pty Ltd dated 15 April 2016.
At the hearing the applicant gave evidence about payments that he had made to the Australian Education Academy for tuition fees and disputed the period when his enrolment ceased.
The applicant’s evidence was unclear as to when exactly he believed that his enrolment had ceased. He gave evidence at the hearing that he had stopped studying the Certificate IV in Automotive Mechanical Diagnosis at some time in or about mid-2016, when he was told that his grandmother was ill and he became depressed. He claimed that in early 2017, he re-enrolled in the Certificate IV course and was unsure as to what happened with his enrolment and when he ceased being enrolled in the Certificate IV course.
The Tribunal gave the applicant an opportunity to file further material after the hearing on 5 April 2019 supporting his claims that he had paid tuition fees for his enrolment. On 12 April 2019, the applicant provided a statement from the Australian Education Academy setting out the payments made by the applicant (AEA Statement).
The AEA Statement was somewhat inconclusive about enrolments but confirmed that:
·The applicant had paid $1000 on 26 June 2015;
·The applicant was debited $11,200 on his account on 6 July 2015 for a sale for his course;
·The applicant had paid $1800 on 21 December 2015;
·The applicant had paid $400 on 19 April 2016; and
·The applicant had paid $1500 on 1 March 2017.
Based on the AEA Statement, the applicant was in arrears the amount of $6500 on account.
By reason of the uncertainty with the matter of the applicant’s enrolment status, on 6 May 2019 the Tribunal obtained a copy of his enrolment records from the Provider Registration International Student Management System Database (PRISMS records). The PRISMS records contained a Confirmation of Enrolment certificate for the Diploma of Automotive Technology, to be undertaken by the applicant between 6 February 2017 and 22 January 2018, which covers the period in which the delegate found that the applicant was not enrolled in a course of study. However the PRISMS records identified the Confirmation of Enrolment certificate for the Diploma of Automotive Technology as inactive.
On 17 May 2019, the Tribunal wrote to the Australian Education Academy, the relevant education provider, seeking clarification of the inactive record and requested as follows:
The attached PRISMS records reference the CoE status as Inactive and the CoE has not been issued a reference number; instead a reference of Null is recorded.
In relation to the PRISM reference could you please explain:
·    what an Inactive course status is and whether the applicant was enrolled in the Diploma of Automotive Technology [087822J];
·    if he was enrolled in the course, for what period and when did the course cease; and
·    please confirm the reason why the course ceased or became inactive.
Please provide this information, in writing, by 20 May 2019.
(Tribunal Request)
On 17 May 2019, the Tribunal received an email from the Australian Education Academy in response to its letter stating:
Thank you for your email.
This student has done the following courses with us:
· Certificate III Light Vehicle Mechanical Technology (AUR30612) with us from 20/07/2015 to 16/07/2016.
· Certificate IV in Automotive Mechanical Diagnosis (AUR40212) with us from 18/07/2016 to 04/02/2017.
In regards to the inactive status, even the current user guide does not tell anything about it.
Our PRISMS record does not show any CoE for Diploma of Automotive Technology.
But I think, this status of inactive might be available in the previous years.
For example, before 2007 PRISMS had the "reported on" as one of the features.
But now this status is phased out. Same can be the case with inactive status.
A copy of the email is enclosed.
(AEA Response)
In accordance with its obligations pursuant to s.359A of the Act, on 24 May 2019 the Tribunal sent a letter to the applicant enclosing a copy of the PRISMS records, the Tribunal Request and AEA Response explaining to the applicant what the PRISMS records are, the relevance of the documents to the review and the consequences of it relying on the information contained in the documents. The Tribunal invited the applicant to comment on or respond to the invitation or seek an extension of time in which to comment on or respond to the information contained in the documents by 7 June 2019 (Request for Comment).
The applicant by his representative sought an extension of time within which to respond, which was granted and by email on 21 June 2019, the applicant by his representative sent an email explaining that the applicant’s enrolments in cooking courses were an administrative error and requesting a second hearing, or if the hearing was not granted, alternatively more time for the applicant to provide a more detailed response.
On 25 June 2019, the Tribunal confirmed that a further hearing would not be required but it would allow the applicant an additional 14 days in which the applicant could provide any further submissions in relation to the Request for Comment. The Tribunal was not prepared to reconvene the hearing in the circumstances where the applicant had been given an opportunity to give detailed evidence at the hearing, which he did take up and 2 opportunities to submit further evidence to the Tribunal in writing.
On 9 July 2019, the applicant by his representative filed written submissions (Submissions) with supporting documentation including:
·Statutory declaration of the applicant made 9 July 2019 (Statutory Declaration);
·Statement of Gursab Singh dated 9 July 2019;
·Psychological report of Edwin Kleynhans made 2 April 2019;
·Tax invoices issued by the Alfred Hospital dated 23 August 2017;
·Letter issued by Victoria Police dated 26 January 2018;
·Letter issued by AA Poly dated 9 June 2015;
·Letter issued by AEA dated 18 June 2019;
·Certificate of Registration of PFF Transport Pty Ltd (ACN 163 145 195) (PFF) dated 4 April 2013; and
·Bank statement for PFF dated between 8 April 2019 and 7 June 2019.
The Tribunal has given consideration to the applicant’s evidence and substantial volume of documentation.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with condition 8202?
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).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The applicant had arrived in Australia on 26 September 2014, after obtaining an initial student visa TU 573 to study a suite of courses including a Diploma of Information Technology leading to a Bachelor of Information Technology through Academies Australasia Polytechnics (AA Poly) and the University of Canberra.
The applicant gave evidence that he enrolled in the Diploma of Information Technology as entry to study an Advanced Diploma of Information Technology and Bachelor of Information Technology. The applicant’s evidence is supported by the enrolments in the PRISMS records.
The applicant commenced studying the Diploma of Information Technology but he did not complete the course claiming that he lost interest in information technology but he was more interested in motor vehicles.
On 20 July 2015, he enrolled in a Certificate III in Light Vehicle Mechanical Technology at Australian Education Academy and on 16 July 2016, he completed the course and obtained the certificate.
The applicant gave evidence that on 18 July 2016 he enrolled in a Certificate IV in Automotive Mechanical Diagnosis, at Australian Education Academy, which is also supported by the PRISMS records.
The PRISMS records confirm that on 4 February 2017, he completed the course and obtained the Certificate IV in Automotive Mechanical Diagnosis, at Australian Education Academy. The AEA Response also confirmed the completion of the Certificate IV in Automotive Mechanical Diagnosis.
At the hearing the applicant gave conflicting accounts as to whether he was enrolled in a course of study at AEA from 5 February 2017. His evidence was that he ceased attending classes in mid-2016 while studying the Certificate IV in Automotive Mechanical Diagnosis but that he re-enrolled in that course in early 2017. However there were problems with the tuition fees and he was in arrears and he received a demand for payment in December 2016 for the Certificate IV course, which he claims he paid in cash. His evidence was that he did not study in 2017 and he was unsure what happened to his enrolment.
The applicant’s evidence was inconsistent with much of the documentation. Based on the evidence contained within the PRISMS records, the AEA Statement, the Tribunal Request and the AEA Response, it would appear that in 2015 the applicant had enrolled in a suite of courses including a Certificate III in Light Vehicle Mechanical Technology, Certificate IV in Automotive Mechanical Diagnosis and Diploma of Automotive Technology at AEA. The Confirmation of Enrolment certificate was created on 12 September 2015, 17 months before the course was to commence. The cost of the course was $4000. It appears the applicant completed the Certificate III and Certificate IV courses but it would appear from the AEA Statement that the fees for the Diploma of Automotive Technology course were not paid and that enrolment did not become active.
In any event the applicant conceded in both the Statutory Declaration and in Submissions that he was not enrolled in a registered course from 5 February 2017 up until his visa was cancelled on 16 August 2017.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course of study between 5 February 2017 and 16 August 2017. Accordingly, the applicant has not complied with condition 8202(2). As this was a condition which attached to his visa, the applicant has therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b).
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
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
The applicant gave evidence that he came to Australia to study and undertake a suite of courses including a Diploma of Information Technology, Advanced Diploma of Information Technology and a Bachelor of Information Technology. However the applicant lost interest in studying Information Technology and after studying for approximately 6 months he changed courses and he studied and completed a Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis.
The Tribunal accepts that the applicant’s submissions that the cancelled enrolments in the PRISMS records for the Certificates III and IV in Commercial Cookery, were enrolments due to administrative errors and were subsequently cancelled. The Tribunal has given those cancelled enrolments no weight in determining this matter.
On the evidence before the Tribunal, the applicant has been in Australia since September 2014, being just less than 5 years and he has completed 2 certificates.
The applicant has given evidence that if possible he intends to remain in Australia to fulfil his academic goal and study a Diploma of Automotive Technology which is likely to take 1 year and a Bachelor of Automotive Technology in Australia which is likely to take a further 2 years. If he completes those studies, he will have remained in Australia for 8 years.
Having regard to the applicant’s evidence, the Tribunal accepts that the applicant may have travelled to Australia intending to study and he intends studying in Australia in the future. Given his conduct in Australia as set out below and his ability to complete 2 certificate courses since his arrival in September 2014, the Tribunal gives this only little weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant gave evidence that he was not enrolled in a course of study from 5 February 2017 until the cancellation of the visa on 16 August 2017 being a period of just over 6 months which was a substantial period of time. Therefore, the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial duration of time may weigh towards the cancelling the visa unless the Tribunal accepts his reasons for non-enrolment.
The applicant in evidence gave a couple of reasons why he was not enrolled and those reasons were that he was depressed on discovering that his grandmother was ill in mid-2016 and he ceased studying the Certificate IV but re-enrolled in early 2017 but was not studying and he was involved in a terrible car accident the day before the Department’s decision. He was not physically injured in the car accident but claims he suffered from shock. The applicant in the Statutory Declaration and the Submissions added a further ground, namely that he gambled away the tuition fees and was unable to enrol in the Diploma of Automotive Technology in February 2017, after completing the Certificate IV course. The evidence and ground raised in the Statutory Declaration was totally inconsistent with his evidence at the hearing. The effect of the evidence in the Statutory Declaration and the Submissions, was that the Tribunal found that the applicant’s evidence at the hearing was not credible and it would be dangerous to accept his evidence without corroborating evidence and documentation. The Tribunal does not find the reasons claimed for not being enrolled compelling or convincing reasons.
The Tribunal finds the applicant was responsible for not being enrolled, primarily due to the non-payment of tuition fees in February 2017, which he gambled away, and the period of non-enrolment, for which the applicant provided little evidence with what he did with his time, was substantial. By reason of the unexplained period of not being enrolled and the duration of the breach, the Tribunal gives this some weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled. The applicant gave evidence that he was a sole child and his parents would be disappointed and let down if he did not complete the degree after they had sent him to Australia to study.
The applicant in the submissions also made reference to Dr Kleynhans’ report that the applicant had a fear of failure. Further the applicant referred to PIC 4013 and 4014 in the Submissions and argued that the student visa cancellation will exclude the applicant, other than in limited circumstances, from being granted a further temporary visa in Australia for a period of 3 years.
The Tribunal finds that while the applicant’s parents would be disappointed that their son has not attained his qualifications, that is not a matter which would constitute a substantial degree of hardship sufficient to weigh as to whether the visa ought not be cancelled.
Further the consequences of PIC 4013 and 4014 are the ordinary consequences of the cancellation and do not on their own provide a ground of hardship which would constitute a degree of hardship sufficient to weigh as to whether the visa ought not be cancelled.

The Tribunal considers that the above matters give no weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant gave a substantial amount of evidence as to the circumstances that led to the cancellation of the visa.
However the applicant’s evidence from the hearing was somewhat confusing and inconsistent in relation to whether he was enrolled in a course of study at the time that his course was cancelled. The applicant gave evidence that:
(a)After enrolling in the Certificate IV course in mid-2016, he encountered family problems and he was told by his mother that his grandmother who he was close to as he lived with her for 4 years was unwell and she had been diagnosed with diabetes. He was told that she was hospitalised and her condition was deteriorating and he stressed over her health. He claims that he was emotionally attached to his grandmother and depressed by her condition. He claims that he visited Dr Martin Hartnett in Noble Park, to be treated so that he could help him to study;
(b)He claims that he was depressed by his grandmother’s condition that he stopped studying and attending college in mid-2016 and he did not complete the Certificate IV. His grandmother’s condition worsened and she passed away on 30 January 2018;
(c)He claims that he received a call from the AEA asking why he was not attending college and requesting that he attend college. He responded that he was depressed and could not attend;
(d)He claims that he re-enrolled in early 2017 to complete the Certificate IV and they would then enrol him in the Diploma of Automotive Technology at AEA once he completed the Certificate IV. He claims that he re-enrolled for the Certificate IV and provided visas, and he also paid money to AEA in February 2017, which paid everything up-to-date including all money that he owed to the college;
(e)However his evidence waivered and he accepted that he had not paid his entire enrolment fees for his course. He said that he paid all the fees for the Certificate III course but only half the fees for the Certificate IV course. On 2 December 2016, the applicant received a final warning by email to pay outstanding fees owing on a payment plan and threatened if not paid his enrolment could be cancelled. He showed the Tribunal a copy of the email from AEA, which was read out at the hearing. He claims he paid Vivek, an employee at AEA, cash twice after receiving the demand, the first payment of $1700 and second payment of $2000, in relation to the amount in arrears for the due fees;
(f)He claimed he re-enrolled in early 2017 but gave evidence that he did not get mail or email confirming the enrolment;
(g)He was contacted by the college, AEA and told that he had to attend the college for study;
(h)He was involved in a very bad motor vehicle accident on 15 August 2017, where the motor vehicle flipped and he was in shock; and
(i)When he received the Notice of Intention to Consider Cancellation of the visa from the Department on 25 July 2017, he contacted the college and they told him not to worry and assured him that the college would look after it. He was then questioned about receiving the notice and why he had not taken steps to respond. He then gave evidence that he had spoken to the college upon receiving the notice and complained to them why he was not enrolled and that they should have spoken to him when he became not enrolled. He complained he had insufficient time to respond to the notice from the Department; he had to speak to his family before he could respond and he was also distressed about his grandmother at that time because she was unwell. He then said the college had told him to speak to the Department about the Notice.
The applicant gave evidence that he did not provide a response to the Notice of Intention to Consider Cancellation within the time required.
The applicant in the Submissions outlined 3 reasons for not being enrolled being:
·The illness of his grandmother which resulted in the applicant suffering depression and anxiety and being unable to enrol in a course;
·The applicant’s gambling addiction which caused him to lose his tuition fees; and
·The motor vehicle collision which the applicant was involved in on 15 August 2017, the day before the decision was made for the cancellation.
The evidence of the applicant at the hearing was also inconsistent with the documentation submitted and the Statutory Declaration and as discussed above was not reliable. Based on the documentation submitted including the Submissions, the Statutory Declaration, the PRISMS records, the reports of his psychologist Edwin Kleynhans dated 4 August 2017 and the AEA Response, the Tribunal finds that:
(a)on 18 July 2016 the applicant enrolled in a Certificate IV in Automotive Mechanical Diagnosis, at Australian Education Academy; on 4 February 2017, he completed the course, which is supported by the PRISMS records, the AEA Response and the Statutory Declaration. In such circumstances the applicant did not cease his studies in mid-2016;
(b)further the medical reports of psychologist Edwin Kleynhans confirmed that:
(i)the applicant had not studied at any college from February 2017 (not mid-2016 as given in evidence) – see the Reports dated 4 August 2017 and 15 August 2017 (paragraph 1);
(ii)the applicant had told Edwin Kleynhans that he lived with his maternal grandmother for 1 year and developed a strong attachment to her and when he was told that his maternal grandmother developed mobility problems during the course of that year (being 2017) he became depressed about that – see the Report dated 4 August 2017 and paragraph 5 of the Report dated 2 April 2019;
(iii)the applicant had complained about severe depression since his arrival in Australia in 2014, but notwithstanding his condition he had studied successfully with his stress condition – see the Report dated 4 August 2017;
(c)the Tribunal accepts that the applicant would have been stressed about the news about his grandmother and that it may have placed additional stress on him in early 2017 in relation to his studies. While the Tribunal accepts the reports of Edwin Kleynhans and his findings as to the applicant’s psychological state, the reports must be considered in the context of the information provided by the applicant to Edwin Kleynhans and when it was provided. The reports do not reveal other than an initial 2-hour clinical interview on 4 August 2017, what if any other consultations have been held by the applicant and Edwin Kleynhans and what information was provided by the applicant. The reports of Edwin Kleynhans do not address the matter of the applicant’s gambling problem and one would expect that it would have been likely to have been raised in such a report if the applicant had told Edwin Kleynhans about it. The issue of the applicant’s gambling is a relevant matter which is likely to have had an impact on the reports. The reports rely on the applicant’s statements given in consultation and on the observations of Edwin Kleynhans as to the applicant during the consultation. In light of the applicant’s unreliable statements and the applicant not meeting with Edwin Kleynhans until 4 August 2017, the reports can only be relied upon as to the applicant’s state as at the time of that consultation, not when his enrolment ceased;
(d)It accepts the evidence of the applicant at paragraphs 15 to 21 of the Statutory Declaration whereby he gave evidence that the reason he was not enrolled in a course from 5 February 2017 to 16 August 2017, was due to him gambling away the money for his tuition fees provided by his family. Such evidence is totally inconsistent with the evidence given at the hearing;
(e)The applicant did not complete his enrolment in the Diploma of Automotive Technology in February 2017 because he did not pay the tuition fees. The applicant was aware of this at the hearing but instead he gave evidence which was inconsistent with those facts that he had re-enrolled in the Certificate IV and paid the tuition fees for enrolment;
(f)In light of the fact that the applicant’s studies ceased because he did not enrol in the Diploma of Automotive Technology because he gambled away the tuition fees, it does not find that he ceased studies because of his mental state or because he was depressed. No doubt the applicant would have been concerned for his grandmother, but in light of the evidence, it does not accept the applicant’s submissions that he was not enrolled in a course due to depression and anxiety caused by his grandmother’s illness;
(g)The applicant submitted medical evidence at the hearing being a report from Dr Martin Hartnett and gave evidence that he visited Dr Hartnett in Noble Park in August 2016, about being depressed about his grandmother. I note that the Hartnett Report merely states:
The(v) above has been suffering from depression for some months. I am sure this would have had an adverse effect on his ability to study.
There is no context as to the cause of the diagnosis and whether it had anything to do with his grandmother or just his general state of mind. In light of the brevity of the report and its purpose, no conclusions can be drawn as to the applicant’s state in February 2017 from that report when he was to re-enrol;
(h)There is no corroborating evidence that the applicant merely stopped attending college or that he received a call from the AEA asking why he was not attending college. The applicant did not complete his enrolment in a Diploma of Automotive Technology, he did not commence studies in that course and that was the conclusion of his studies; and
(i)The applicant was involved in a very bad motor vehicle accident on 15 August 2017, where the motor vehicle flipped and he was in shock. However the collision occurred the day before the decision to cancel the visa and does not explain why he was not enrolled from 5 February 2017 to 16 August 2017.
The applicant gave evidence when he received the Notice of Intention to Consider Cancellation of the visa from the Department on 25 July 2017, he contacted the college and they told him not to worry and assured him that he was enrolled and everything was good. The Tribunal finds such evidence lacking credibility that an educational institution would give such advice to a student. The applicant then gave evidence at the hearing that he had spoken to the college upon receiving the notice and complained to them why he was not enrolled and that they should have spoken to him when he became not enrolled. He complained he had insufficient time to respond to the notice from the Department; he had to speak to his family before he could respond and he was also distressed about his grandmother at that time because she was unwell. He then said the college had told him to speak to the Department about the Notice. Much of that evidence is inconsistent with his evidence that he was not enrolled from 5 February 2017 as he had not paid his tuition fees.
Ultimately the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment. The applicant had an opportunity to sort out the issues regarding his non-enrolment and to speak to his uncle and family about his gambling, and getting enrolled through February to July 2017, but he did not take that option up.
The central purpose of the student visa is to study and for the 6-month period between 5 February 2017 and 16 August 2017 which was substantial, the applicant was not enrolled to study.
The Tribunal has considered the applicant’s explanations for why he was not enrolled for this substantial period and therefore in breach of condition 8202(2). The Tribunal does not accept the circumstances were beyond his control or that the circumstances indicate reasonable explanations for not being enrolled for such a period of time. The Tribunal gives this matter very substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the decision record, the applicant had not responded to the Department’s Notice of Intention to Consider the Cancellation of the visa. However there was no other evidence that the applicant had been uncooperative towards the Department. The decision record of the Department confirmed that he had not been uncooperative towards the Department. The Tribunal gives this little weight in his favour.
Whether there would be consequential cancellations under s.140
This matter is not relevant in this application and I give this factor no weight.
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
The applicant gave evidence that if the visa remained cancelled he would return to India and therefore there is no indication that he would become unlawful or be subject to detention and I give this factor no weight.
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
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to India and he did not give any reasons as to why he could not return to India and he has not made any claims that relate to this consideration. I give this factor no weight
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and I give this factor no weight.
Any other relevant matters
The applicant has in the Submissions confirmed that he is being supported by his uncle and if he is able to continue studying he will be financially supported by his uncle and his parents who have land in India.
Further he claims that he has turned his life around since moving back with his uncle 2 years ago. He wants to complete his diploma in order that he may find employment in India as a mechanic and also for the purpose of migrating to Canada after completing the Diploma.
The Tribunal has had regard to his responses, but in light of the findings above it adds very little to his case and the Tribunal gives it very little weight to the visa not being cancelled.
The Tribunal has considered the applicant’s evidence at the hearing, the documents provided and the submissions made at the hearing and after the hearing, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michael Biviano
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.

[2019] AATA 4110

6 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Breach

Statutory Construction

Natural Justice