Singh (Migration)

[2019] AATA 621

Singh (Migration) [2019] AATA 621 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parambir Singh

CASE NUMBER:  1702437

HOME AFFAIRS REFERENCE(S):           BCC2016/4243342

MEMBER:Brendan Darcy

DATE:25 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 February 2019 at 3:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – credibility concerns – fraudulent documents – not a genuine student – 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

1. This is an application for review of a decision dated 9 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 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 breached one of the conditions imposed on his visa and that the grounds for cancellation outweighed the grounds for not cancelling. 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. The applicant, an Indian national, appeared before the Tribunal on 23 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

4. The applicant was represented in relation to the review by his registered migration agent, although his representative did not attend the hearing.  

5. 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

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 comply with 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’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

9. The delegate’s decision submitted to the Tribunal indicates the applicant had been granted a Subclass 573 Higher Education Sector student visa on 10 April 2014 and the stay period of the visa was extended up to and including 3 September 2017.  It also shows that Provider Registration and International Students Management System (PRISMS) records that indicate had not been enrolled in a registered course of study since 29 January 2016.

10. The departmental file indicates that that the applicant was validly issued a Notice of Intention to Consider Cancellation (NOICC) on 13 January 2017, inviting the applicant to provide reasons not cancel the student visa within a five-day timeframe.

11. ON 16 January 2017, the applicant sought an extension of time to respond to the NOICC which was granted to the applicant on the following day.

12. On 7 February 2017, the applicant’s representative provided a written response to the NOICC (dated 1 February 2019), in which the representative states ‘that the visa applicant admits that a breach has occurred’.  The response states that the applicant’s enrolment had studying in automotive courses at North Melbourne College until the enrolment was cancelled. It states that fee receipts for this education provider were attached and that has continues to go to the same college.  He also provided copies of letters of offer indicating he applied to enrol into a Certificate IV in Hospitality (Commercial Cookery) at Front Cooking School and a Bachelor of Business at Stott’s College on 2 February 2017. No current Confirmation of Enrolments (CoEs) was attached.

13. On 9 February 2017, the Department proceeded to cancel the applicant’s student visa and was notified on the same date. He then applied to have the delegate’s cancellation decision reviewed by the Tribunal on 13 February 2017.

14. During the scheduled hearing, the applicant explained that he had been enrolled in English language coursework and a Certificate IV in Business at Bayside International English College as well as a Bachelor of Business at James Cook University in northern Queensland. He later moved to Melbourne and then enrolled in a Certificate III and IV in Commercial Cookery and a Diploma of Hospitality at South Pacific Institute. He further explained that he completed the English language and Certificate III in Commercial Cookery coursework but did not commence the other coursework.  The applicant claimed he tried to enrol another Melbourne college with the intention of enrolling an automotive course but was unable to do so.

15. The applicant did not dispute that grounds for cancellation existed as he was not enrolled in a Bachelor’s or Master’s degree since he moved from Cairns to Melbourne. As discerned from the PRISMS record, the applicant was not enrolled any Bachelor or Master’s degree since 28 July 2015.  

16. On the evidence before the Tribunal, the applicant was not enrolled in any course from 29 January 2016 until the date of cancellation on 9 February 2017 – a period of just over twelve months.

17. However, the delegate erred in the date and extent of non-compliance with condition 8202(2) by confusing the applicant’s last date of enrolment in any coursework with his last date  of enrolment in any registered course commensurate with a Subclass 573 visa  - a Bachelor’s or Master’s degree – which is 28 July 2015.

18. On the evidence before the Tribunal, the applicant was not enrolled in any registered course 28 July 2015 until the date of cancellation on 9 February 2017 – a period of just over eighteen months.

19. Accordingly, on the evidence before the Tribunal, the applicant has not complied with condition 8202(2).

20. As the applicant has failed to comply with the visa condition, the ground for cancellation in s.116(1)(b) does arise. It follows that the visa may be cancelled.

    Consideration of the discretion to cancel the visa

21. 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’.

22. The applicant’s representative provided a NOICC response which included that his father had been sick for a long time and this affected his ability to meet tuition fee obligations and to continually study due to anxiety and stress. It is argued the father’s illness was beyond his control.  It mentions that a medical certificate was provided but there was not one attached to the departmental file. It further mentions that the applicant belongs to a middle class family where education is the utmost priority for his parents and that his family has spent over 30,000 Australian dollars on his studies and living expenses. The response further states the applicant has no job and this affected his ability to study and to travel to his education provider and that he used drugs to deal with the stress and that he ended up in police custody.   

23. However, one day prior to the scheduled hearing, the applicant and his representative provided a written submission with a attached copy of a translated document claiming to be his mother’s death certificate.  It indicated that the applicant’s mother died on 11 July 2017.

24. The submission stated that the applicant was unable to study while living away from his family due to her sickness; that he is a genuine student; that his family has invested time and money in his education and these expectations have in turn caused further stress, contributing to him not studying; and that the applicant will face discrimination from his family and community in India; that he will be seen as a failure if he returns to Indian and that there is a great possibility he will be forced to marry by his family.

25. On 4 February 2019, the Tribunal wrote to the applicant under the Act’s s.359A provisions to invite the applicant to respond to the following information:

    The particulars of the information are:

    ·On the day of the scheduled hearing on 23 November 2018, the applicant submitted a copy of a death certificate claiming to be of the applicant’s mother (Harmeet Kaur). The death certificate indicates that the applicant’s mother passed away on 11 July 2017 and it has the registration number 830361 issued by the Government of Punjab’s registrar of births and deaths. The date of registration was 17 July 2017. The format included handwritten details in Punjabi script about the death and its registration. A notarised translation was provided which was dated 22 November 2018. Copies are attached to this letter.

    ·The applicant provided oral evidence at the scheduled hearing that the cancer his mother was suffering and the treatment she was undertaking had been the extenuating circumstances leading to the applicant being breach condition 8202 between 8 February 2016 and the date of his student visa was cancelled on 9 February 2017.

    ·The applicant’s written NOICC submission to the Department dated 1 February 2017 does not mention any sickness or disease suffered by the applicant’s mother. However it does mentions that his father’s illness was beyond his control and caused him much stress and anxiety in his life which affected his studies.

    ·During the hearing, it was discussed that the Tribunal had a copy of a birth certificate issued by the Government of Punjab’s registrar of birth and deaths for a female whose date of birth is record as 26 February 2016. The format is that a word processing pro-forma which included details about the specific birth in both Punjabi and English. The registration number was 890630. A copy is attached to this letter.

    ·During the hearing, it was discussed a copy of a death certificate issued by the Government of Punjab’s registrar of birth and deaths for a female whose date of death is record as 13 December 2016. The format is that a word processing pro-forma which included details about the specific birth in both Punjabi and English. The registration number was 202710. A copy is attached to this letter.

    ·The copies of the birth and the death certificates were obtained from the Punjab’s publicly available official website: No registration document number 890631 about a death certificate could be located.

    ·When the Tribunal asked the applicant to explain the reasons for the differences in the formatting of the death certificate of his mother with other documents; the applicant provided the explanation the document was handwritten in the hospital at the time of death. However the date of the registration of the document occurred six days after the claimed date of death.

    ·Country information from the most recent DFAT report on India indicates that the submission of fraudulent documents is common in India.

    5.28 Forgery, making false documents and using false documents are offences under sections 463-489 of the Penal Code. Several sources claim the manufacture and use of fraudulent documents is prevalent in India, including for immigration purposes. Documents vulnerable to forgery include civil registry documents, curricula vitae, letters of employment, financial documents, educational qualifications, newspaper articles, political party registration, and websites created specifically to validate other documents. Although all documents are vulnerable to fraud, some are more difficult to forge. Passports are relatively more difficult to forge than other types of identity documents, but genuine passports may be obtained relatively easily using fraudulent information. In May 2013, the MEA revoked the passports of 127 Sri Lankan nationals residing in Tamil Nadu on the grounds they were issued on the basis of false supporting documents.

    ·The applicant later stated that he was forced by his parents to remain in Australia and that he took over-the-counter headache tablets to treat his psychological conditions which he claimed to be depression. 

    These particulars of information is relevant to the review because the Tribunal has reasonable suspicions that the death certificate claiming to pertain to his mother’s passing as documentary evidence had been wilfully and fraudulently contrived and submitted to the Tribunal in order to garner a favourable outcome from this review of a student visa cancellation.  These reasonable suspicions are brought about the lateness of the applicant’s claim about his mother’s illness, the prevalence of fraudulent documents emanating from India for migration purposes, the crude handwritten formatting of the death certificate submitted compared to other registration documents in which specific details are typed in both English and Punjabi and the inability to locate the death certificate through the abovementioned publicly available website.   The applicant has also invited reasonable suspiecions about contrived claims and fraudulent evidence in the context of there  being an absence of any medical evidence from a medical professional to support the claim the applicant had experienced any psychological conditions that prevented him from becoming or remaining non-compliant with condition 8202, other than his oral evidence that he medicated with over-the-counter headache tablets; and by the abovementioned oral evidence that his parents encouraged him to remain in Australia which undermined the credibility of his other claimed reasons for breaching condition 8202.

    Subject to the applicant’s comments, if the Tribunal rely on these particulars of information, cumulatively considered, in making its decision, it may make the reason or part of the reason to affirm the delegate’s cancellation decision on the basis that the applicant has presented fraudulent documentary evidence and fabricated written and oral claims and that the claimed extenuating circumstances leading to the cancellation of this student visa lacked credibility.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 18 February 2019.

26. On 7 February 2019, the applicant’s representative responded to this invitation to respond to adverse information. Attached was a copy of a registered death certificate issued by the Government of Punjab in a different format to the one submitted prior to the scheduled hearing. It was reiterated that the earlier copy was provided by the hospital where his mother was receiving treatment and that his mother was genuinely terminally ill due to cancer and that her death of the applicant’s mother was genuine.

27. It also states that the NOICC response about drugs and police custody had been an administrative error by the agent.

28. No further information or submissions were provided by 18 February 2019 and the right up to the time of making this decision.

    Adverse information findings

29. During the hearing, the Tribunal presented examples of formatted death and birth certificates issued by the Punjabi government which did not appear to correlate with the applicant’s submitted death certificate. Out of an abundance of procedural fairness, the tribunal undertook to put this information to the applicant and other pieces of information under the Act’s adverse information provisions: section 359A. This is outlined above. The Tribunal is satisfied that it explained why the information was relevant and the reasons it could make up the reason or part of the reasons the Tribunal could affirm the decision to cancel the applicant’s student visas and that it carried out its duties in this regard.   

    Credibility concerns and findings

30. The Tribunal has a number of credibility concerns about the applicant’s claims for his non-compliance and the reasons his visa should be reinstated.

31. Firstly, on the one hand, claimed he enrolled and studied continuously in automotive course at the time of his diploma in his written NOICC response; however at the scheduled hearing he claimed he was going to enrol but was unable to. The Tribunal does not accept the applicant was ever enrolled or studied in coursework relating to automotive based on the wide discrepancies between the written and oral claims. However it accepts that it was suggested to him by an agent as he believed there was a good future in the automotive industry. Having made this specific adverse credibility finding, the applicant has invited the Tribunal to consider other evidence lacked credibility.

32. Secondly, in the context of the abovementioned adverse credibility finding, the Tribunal has considered the applicant’s vague claim in the NOICC response that he was unable to study or remain enrolled had been due to his father’s sickness. However the applicant’s written submission to the Tribunal did not mention this claim at all. Instead, it was posited that his mother’s illness had been the reason for his non-compliance. When the Tribunal prompted the applicant about this omission after he was explaining his extenuating circumstances that led to the grounds for cancellation, the applicant claimed that his father was sick in 2015 and 2016 and he was now better and working. Had it been a credible reason or part of the reason for his visa not to be cancelled, it would be reasonable to have consistently raised this without being prompted. The Tribunal does not accept the applicant’s original claim about his father being sick or unable to work in the NOICC to be credible or that it was part of the reason for the applicant’s non-compliance. Having made this specific adverse credibility finding, the applicant has invited the Tribunal to consider other evidence lacked credibility.

33. Thirdly, when the Tribunal noted that when it discussed at the Tribunal it had a number of credibility concerns the applicant’s claimed extenuating circumstances and about the genuineness of the document claiming to be the death certificate of the applicant’s mother, he became visibly upset and stated “I was forced by my family to stay here’. The Tribunal took care to write to the applicant under s.359A to respond to this as adverse information. It notes that the written response to this invitation to comment does not mention this at all. The Tribunal has been invited to consider that the reason the applicant submitted a fraudulent document or has presented otherwise weak and inconsistent evidence about his circumstances has been the pressure he has placed under by his family to remain in Australia and that the purpose for his travel to Australia was not to study on a full time basis but to satisfy his parents’ wishes that he migrate to Australia on a permanent basis.

34. Fourthly, it does not accept the applicant’s original copy of his mother’s certificate was genuine. That is not to say the Tribunal does not accept that the applicant’s died from the claimed cancer. The applicant has provided a copy of more consistently formatted death certificate and the Tribunal was able to locate it on the abovementioned Punjabi government website. It does not accept the applicant provided a genuine copy issued by the hospital in which his mother had been treated as neither the applicant nor the representative were able to account for the later date of issue of the death certificate on 17 July 2015 from the date of death on 11 July 2015 or to account for his admission that his family forced him to remain in Australia. The Tribunal finds that the applicant presented a fraudulent death certificate to support this otherwise genuine event of significance to him. Nevertheless presenting any fraudulent documents invites the Tribunal to consider the applicant lacks overall credibility. In the context of the other discrepancies referred to above, if the applicant is willingly and knowingly to undertake such a deceitful activity, it invites further adverse credibility concerns about the applicant being a witness of truthfulness.  

1. Fifthly, the Tribunal was further invited to question the credibility of the applicant when he submitted a written reason for his visa not to be cancelled when he feared that he would be forced into a marriage by his family which would breach Australia’s international obligations. However, during the scheduled hearing, the applicant did not claim he has a real chance or a real risk of harm from the authorities or anyone else, if he returns to country of nationality. Had the applicant genuinely feared forced marriage, he would have advanced it at the scheduled hearing. Instead he stated he had no fears.  Based on this discrepancy between his written and oral claims, the Tribunal does not accept he ever held any fears of forced marriage or any other serious or significant harm by his family in the past or into the reasonably foreseeable future as it lacks credibility.  In making this finding and in the context of earlier adverse credibility findings, the applicant has further invited the Tribunal to consider the applicant’s reasons not to cancel his visa lacked overall credibility.

2. Given the number of specific adverse credibility findings, cumulatively considered, the Tribunal is unable to provide the applicant the benefit of the doubt that many of the critical aspects of his claims are credible or reliable. The findings included mutually unsupportive inconsistencies and discrepancies, at least one fraudulent document and an admission that he has been ‘forced’ to remain in Australia by his parents. The Tribunal finds that the applicant was not a witness of truthful in either his NOICC response or his written and oral claims to the Tribunal and that he has behaved deceitfully solely to garner a favourable outcome from this review. When considering the Tribunal’s discretionary powers, any further adverse credibility findings or adverse weightings have been made in the context of this overall adverse credibility finding.

   The purpose of the visa holder’s travel to and stay in Australia

3. According to the decision record, the applicant completed English language coursework and a Certificate III in Commercial Cookery and placed some weight in this factor for not cancelling the visa. The Tribunal also places some weight in this factor for not cancelling the visa.

4. However, when he moved from Cairns in northern Queensland to metropolitan Melbourne his enrolment in a diploma and bachelor’s degree was cancelled in 2015 and he did re-enrol in any Bachelor or Master’s degree again. Instead he enrolled in vocational coursework which eventually was cancelled in early 2016. The applicant claimed that tried to enrol in coursework in automotive mechanics but was unsuccessful. Later, the applicant presented letters of offer to gain qualifications in cookery and a bachelor of business.

5. During the scheduled hearing, the applicant claimed that he came to Australia to undertake business courses as he wanted to start a pesticide distribution business in India’s agricultural sector. The applicant then claimed he changed his mind and undertook commercial cookery and then changed his mind that it was recommended that automotive coursework was better for work prospects. He also claimed he wanted to complete a cookery course and hospitality degree so he could start a business in India which was the reason he had letters of offer to complete such studies. The applicant stated that he wanted to teach cooking skills.  In the context of the Tribunal’s adverse credibility findings, the Tribunal finds the applicant’s explanations for changing between unrelated coursework and his vague and shifting evidence in this regard to be lacking in credibility, which, in turn, invites the Tribunal to consider the applicant to not motivated to achieve any particular qualification for a particular career purpose.  

6. Furthermore the applicant regularly claimed throughout the hearing that it was his mother’s dream or earnest wish for him to complete studies in Australia. However, the Tribunal has considered this statement against the admission that he was forced to remain in Australia by his parents and in the context of its overall credibility findings that the applicant is not a witness of truthfulness. Ordinarily the Tribunal would accept such a plausible motivation that the applicant wished to fulfil his mother’s wishes for him to advance academically.  However, the Tribunal’s concerns about the applicant’s reliability are so deep that it is not able to accept the applicant’s late mother had academic aspirations for her son. Instead the Tribunal has relied on the finding above that the applicant’s comment that was compelled to remain in Australia not for studies purposes – a credible comment that that otherwise undermined the applicant’s weak and inconsistent evidence and arguments he presented  

7. Overall, the applicant has failed to demonstrate on any credible basis that the purpose of travelling to Australia has been to complete full time study, to advance academically or to reach certain career goals. It does not accept the original intention for his travel to and stay in Australia was for the purpose of study. It does not accept the applicant genuinely wants to remain in Australia to complete studies on a full time basis and it finds he will not uphold he conditions imposed on him as a student visa holder. Taking all this relevant information into cumulative consideration regarding about the applicant’s purpose to travel to and stay in Australia, the Tribunal gives this little weight in favour of the visa not being cancelled.

   The extent of compliance with visa conditions

8. The delegate decision does not record any information about further non-compliance. The applicant was not enrolled in a registered course for a considerably long period of time. The Tribunal considers this significant to the question whether his visa should be reinstated. The Tribunal gives this factor significant weight towards the visa being cancelled.

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

9. The delegate’s decision accepted that there may be some hardships as a result of the cancellation but the applicant did not provide significant reasons not to cancel the visa.  

10. During the scheduled hearing, the applicant explained that he had spent a lot of time in Australia and many of his friends back in India have moved on with their studies and their lives. He also claimed he will not be able to own a business without a diploma or a degree. When the Tribunal claimed that this is not necessarily true, the applicant responded that he wanted to be a professional. The Tribunal reminded the applicant that he did not need a degree in cooking to run a related business. The applicant responded that he needed to learn how to run a business. The applicant also explained that his life plans will be disturbed if his visa remains cancelled and that he will not be able to fulfil his late mother’s dream that he completes his studies in Australia.  The applicant also stated that he could complete his studies in India but the practical experience and the education is between in Australia and not so good in India. He also feared admission into an Indian university was more difficult. He also mentioned that his family has spent as much as 40,000 Australian dollars on his education in Australia and that he has broken his family trust in not advancing academically.

11. Overall the Tribunal finds these responses do not demonstrate to the Tribunal that the applicant will face any significant financial or educational hardship if his visa remains cancelled. The Tribunal does not accept the applicant will not be able to establish a business or learn to run a business for the reasons claimed. It is accepted that his claimed life plans about studying, gaining an Australian over an Indian qualification and being admitted into an Indian university poses a level of hardship but the hardship is not great, considerable or even notable.

12. It is also accepted that the applicant will experience a degree of emotional embarrassment and shame and that he may even encounter some anger and disappointment as the applicant’s behaviour can be easily construed as a breach of trust by family members. Furthermore, the Tribunal has not advanced that his family will physically ill-treat the applicant in the circumstances whereby he returns to India without qualifications.

13. Overall, whilst the Tribunal accepts that the applicant may suffer some hardship, including emotional, educational, financial and other hardship, if the visa remains cancelled, it finds on the evidence that he has not demonstrated any significant hardships. The Tribunal gives these hardship considerations little weight towards the visa not being cancelled.

    The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.

14. According to the decision record, the delegate accepted there were a number of initial circumstances that led the grounds from cancellation that were beyond the applicant’s control but did not consider that not taking any steps to regularise his immigration status since that time was entirely due to circumstances belong his control.

15. The delegate accepted the applicant’s father was sick for a long time but did not accept this negatively impacted upon the applicant’s capacity to concentrate and he did not attend classes or pay tuition fees to the extent that he could not remain compliant to condition 8202. Specifically the delegate accepted there was some degree of emotional and psychological stress arising from his father’s sickness but it remained open to the applicant to seek deferment and then return to studies.   However, in the context of the Tribunal’s adverse credibility findings above about his father’s sickness and in the context of its overall adverse credibility findings, the Tribunal does not accept the claimed financial and/or psychological impact arising from his father’s illness to be a genuine circumstance in which the ground for cancellation arose. The Tribunal places no weight on this factor as an extenuating circumstance at all.

16. With regards the applicant’s late claim about his mother, the Tribunal notes the delegate was unaware that the applicant’s evidence or argument that he was psychological unable to maintain his studies or enrolment due to his mother’s terminal illness leading to her death in July 2017. As discussed in the hearing and raised in the s.359A letter, the applicant did not raise his mother’s terminal illness (or her treatment of cancer during 2016) when the NOICC had been issued in January 2017, inviting further credibility concerns. As stated in the findings above, the applicant submitted a fraudulent death certificate and then subsequently the applicant has provided the Tribunal with a genuine death certificate as part of his s.359A response. However this does not diminish the Tribunal’s credibility concerns that his mother’s very serious illness as an extenuating circumstance that led to the grounds for cancellation. The applicant was not was not enrolled in a Bachelor’s or Master’s degree in July 2015 or that he was not enrolled in any studies at all since January 2016. When the applicant was asked to explain this significant omission, he stated that he was not informed by his family about the illness. This naturally invited the Tribunal to explain that if this was the case his mother’s terminal illness was withheld from him, the reasons it was an extenuating circumstance.  The Tribunal also notes that the when the extent of the applicant’s psychological symptoms, the applicant responded that he did not have any medical evidence of counselling or medication but insisted that he took Panadol for relief. This response and the lack of medical evidence indicated that the applicant had not suffered to any significant or considerable psychological challenges amount leading to his non-compliance with condition 8202 or throughout the significant period of time of that non-compliance.

17. The Tribunal accepts that the applicant’s mother died for the reasons claimed and that this was beyond his control. On balance, and despite its credibility misgivings, the Tribunal accepts that the terminal illness of the applicant’s mother was withheld from him, as it goes someway to explain his very vague and weak claim about his father’s illness, which the Tribunal finds lacks credibility, as part of his NOICC response.

18. However the applicant has failed to credibly demonstrate that his mother’s terminal illness was an extenuating circumstance that led to the cancellation of his enrolment in a registered course in July 2015, his lack of any enrolment in January 2016 and the long period of time of his non-compliance with condition 8202. It accepts that the applicant experienced grief and stress when he became aware of his mother’s illness at some point in time since this NOICC response.   The Tribunal however finds that the applicant did not experience these emotional difficulties as an extenuating circumstance at the time of his non-compliance due to his credible claim that he was ignorant of this otherwise genuine circumstance beyond his control.  Accordingly the Tribunal does not place any weight on this specific explanation for his lack of compliance with condition 8202 in favour of the applicant’s visa not being cancelled.

19. Based in the context of its overall adverse credibility findings about the applicant’s claims and its specific findings about his mother’s terminal illness as outlined above, the Tribunal does not accept that there were any extenuating circumstances beyond the applicant’s control.  The applicant had no credible extenuating circumstances that were beyond his control that led to the cancellation of his visa. Accordingly the applicant had the ongoing capacity to remain enrolled or to mitigate his non-compliance with condition 8202 throughout the significant period of his non-compliance. The Tribunal gives the evidence very little weight on this lack of any credible extenuating circumstances towards the visa not being cancelled.

    Past and present conduct of the visa holder towards the Department

20. According to the decision record, there was no evidence that the applicant had been uncooperative towards the Department. The Tribunal gives this some little weight in his favour.

    If breach relates to a breach of r.2.43(1)(la) by a Subclass 457 visa holder - mitigating, compassionate and compelling factors

21. Not relevant.

    whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

22. During the scheduled hearing, the Tribunal discussed the effect of section 48 of the Act if the cancellation of the applicant’s visa were to proceed. The applicant responded by stating that he liked Australia and that he will miss it.  The Tribunal accepts that if the visa remains cancelled that the applicant would have limited opportunities to remain in Australia, arising from the operation of section 48 in limiting the applicant in applying for other visas and may have to depart or be detained. Neither the applicant nor his representative at the scheduled hearing or in a written submission presented specific evidence in relation to this factor and accordingly the Tribunal gives this only little weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

23. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Whether any international obligations would be breached as a result of the cancellation

24. During the scheduled hearing, the applicant did not claim he has a real chance or a real risk of harm from the authorities or anyone else, if he returns to country of nationality. He added that his brother will be angry towards him for returning without finishing his studies. The Tribunal notes that in his written NOICC, the applicant’s representative stated the applicant faces the possibility of being forced to marry by his family. Had the applicant genuinely felt this to be the case, he would have advanced it at the scheduled hearing. However he did not. The Tribunal finds that the specific claim not to have been a genuine personally held concerned, in the context of its other adverse credibility findings. There is no evidence before the Tribunal that this is relevant and it gives this factor no weight.

    Any other relevant considerations

25. As mentioned above the applicant’s reasons and explanations for not having his visa cancelled have been found to be lacking in overall credibility; that the applicant is not a witness of truthfulness; and that he has behaved deceitfully. The Tribunal makes a further finding that based on this overall finding, the Tribunal finds that the applicant is not a person who could be reliably to uphold the conditions imposed on him if this visa should not remain cancelled. The Tribunal accordingly places significant weight of this finding that the applicant’s deceitful behaviour in his visa remaining cancelled.

26. During the hearing, the applicant denied ever having illicit drugs or being arrested or detained since arriving in Australia and he could not explain the reason this matter was included in his NOICC response.  In the response to the adverse information, the applicant’s representative stated that the reference to the applicant’s substance abuse and detention by the Australian authorities had been an administrative error on the agent’s part. Despite the Tribunal’s credibility concerns, the Tribunal accepts this to be the case. There is no evidence before the Tribunal that the applicant is a person who has breached any criminal laws in Australia or has any charges pending against him. It places no weight on this factor in having the visa not cancelled.

    Conclusion

27. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

28. Based on many adverse credibility findings as outlined above, the Tribunal has found the applicant to be lacking in overall credibility and to have behaved deceitfully. It has made findings that the applicant is a not a genuine student and it does not accept he will uphold the conditions imposed on him if this visa were to be reinstated. Neither did the applicant demonstrate any significant hardships arising from his cancellation. Nor has he presented any credible extenuating circumstances at all to account for his non-compliance leading to the grounds for cancellation.

29. Considering the evidence provided and on weighing the above factors and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Brendan Darcy
    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.