SINGH (Migration)

[2019] AATA 885

SINGH (Migration) [2019] AATA 885 (8 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh

CASE NUMBER:  1813843

HOME AFFAIRS REFERENCE(S):           BCC2016/1700257 and OSF2013/056781

MEMBER:David McCulloch

DATE:8 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 February 2019 at 11:31am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – April 2015 Nepal earthquake – financial and mental health issues – credibility issues – academic progress prior to earthquake – 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 29 June 2016 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 applicant is a national of Nepal born on 18 February 1994. The visa that has been cancelled was granted on 18 July 2013. That visa was subject to condition 8202.

3. On 14 June 2016 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course from 1 May 2015. A written response to the NOICC was provided with supporting documents. On 29 June 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. This matter has previously been considered by the Tribunal which made a decision dated 17 May 2017 affirming the decision to cancel the visa. The applicant sought judicial review of that decision. On 10 May 2018 the Federal Magistrates Court ordered, by consent, that the matter be reconsidered. This was on the basis that the Tribunal fell into jurisdictional error by breaching s.360 of the Act. This was on the basis that the Tribunal caused the applicant to understand that documents that had been provided to the Department (being the response to the NOICC) were before the Tribunal, when they were not. Those documents were the attachments to an email sent to the Department on 20 June 2016.

6. The Tribunal considering the remitted application has obtained from the Department the documents attached to the email sent on 20 June 2016.

7. The applicant appeared before the Tribunal on 6 February 2019 to give evidence and present arguments. The applicant communicated in English. The applicant was represented by his registered migration agent who did not attend the hearing.

8. 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

9. 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?

10. 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).

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

12. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that he has not been enrolled in a registered course of study since 1 May 2015.

13. In the hearing the applicant agreed that he had not been enrolled in a registered course since 1 May 2015. This was when the applicant failed to commence a Bachelor of Information and Communications Technology which was due to commence on 23 February 2015.

14. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

15. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

16. 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.

17. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.

18. As indicated, the Tribunal considering the remitted application has obtained from the Department the relevant documents that were provided by the applicant in response to the NOICC by email on 20 June 2016.

19. The applicant provided the following statement (not corrected for spelling or grammar):

    My name is Sandeep Singh, I am a permanent resident of Siddharthanagar Municipality ward no. 3, Rupendehi and temporary resident of Tansen Municipality ward no. 10, Palpa and a citizen of Nepal. As soon as I completed my high school, I thought of doing something very well with my career, to study further in my chosen field, in a better college and environment. That's when I decided to come to Australia and add a new skillset and education. Then I applied for a student visa and fortunately It was granted to study on my selected course for four years. I came to Australia in 20th July 2013 for the higher education. I enrolled in Bachelors of Information Technology at the University of Western Sydney (UWS) through the pathway of TAFE for one and half years as diploma. I started studying from 29th July 2013 on TAFE Ultimo. I had a very good start, as TAFE had very nice environment for studies and teachers were helpful too. I completed my Certificate III and Certificate IV with good grades in July 2014. After this course, when I started my diploma, it didn't go well as I expected that's why I wanted to and did started only that one again. This time I was studying harder and kept on focusing on my subjects and giving more time on the course but still had my mind on my last results.

    During this time, I had all my mind focused on studies and wanted to complete in time, but in 25th April 2015, Nepal suffered from a massive earthquake of 7,8 magnitude that shook all the country and the people who were living in there received more. Due to the earthquake many people had to lose their lives, whereas others had to suffer from severe injury, loss of family and also effecting their houses, businesses, wealth and many more. As It wasn't enough, on top of that, India imposed a sanction due to some political reason and made an economic blockade to Nepal where people faced the worse and our country suffered from lack of food, fuel and everything else (especially economical).

    Before all this, we had a very successful business with Dhaka textile and my parents were gladly paying for all my expenses in Australia, including my fees. My family in Nepal did suffered immensely from the earthquake effecting on our house and business, but the Indian blockade made the condition bad to worse. This is the time when I got a big shock because of my family's condition and everything else (after effect of Earthquake). I did not had any clue, what so ever or any idea what will happen to me and my life & education and I was in a total shock. I couldn't think of anything else but my mind was constantly thinking about the condition there in Nepal and how, they are surviving, because of the earthquake and the blockade. The earthquake left a very bad effects on our house and the business, whereas, the blockade made our business to go downslide, resulting in a heavy financial loss. That is the time when my family in Nepal severely suffered financially and most importantly, I being their only son made me suffer more mentally and emotionally, moreover with no other person to look after me here in Australia at the time of need.

    Sir, due to all these disasters that happened to my home and my family, made me a very depressed in Australia. Literally, I was in a state where my mind couldn't work anymore and I could see no ways in front of me. I was Inside the house for weeks & weeks and no one to talk to and did nothing, went nowhere which led me stressed and be depressed more every day. I was in the same state, for months relying on the pills for anti-depression and still heavily stressed mentally. When things started to get better in Nepal, but I still in same state of mind and could not see any clear prospective of my future in Australia. Casually the pills helped me out of this mental depression but it was very late when I realised that I hadn't done any studies here during those difficult days and didn't think of anything at that time.

    I e-mail my problems to my head teacher about not attending my college and he replied it but after that my depression got worse and I could not react them due to depression and I lost by job and I was financially broke. But later on, due to my emotional and mental pressure on my mind and body, I loss 12 — 15 kg of my weight and got depressed mentally without doing anything I was jobless and no money for treatment, well after that my depression got so worse than l did not knew when time flew. Now I am trying get some medical treatment of depression and trying to get some weight but among all, I want to study and be good well qualified person so that I can do anything in my future to make it good and nice so that I can support my family as how they supported me on past and now also though they are still in struggle time.

    I humbly request you to go through my statement and try to understand that how I had been in this time and didn't realise I did not comply to my student visa condition. I do sincerely apologise for my action in the past and I want to continue my studies an Australia. Moreover, now I am mentally and physically fit and my families back in Nepal are ready to support me financially to complete my study in Australia before returning to Nepal as a qualified graduate. At the same time when I enrolled in my present college to continue my study, I received your email from the department. I would like to make a humble request to you Sir that please give me one more chance to study and complete my course. I hope that you understand me and grant me to stay in Australia to complete my studies.

20. Provided with the response were the following documents with a covering submission from the applicant’s migration agent. An additional statement by the applicant indicates that he has a genuine intention to study and achieve a good result. The applicant indicates that what happened in the past will not happen again as he was affected by the earthquake and economic blockade. The applicant indicates that he will be prejudiced and his human rights violated if the visa remains cancelled. The following documents were provided:

    ·Email dated 7 May 2015 from the applicant to an individual at TAFE New South Wales indicating that the applicant is not attending his class and has not paid the fee because of the earthquake in Nepal. He advised that two houses were ‘down’ and cracked. It is advised that the applicant’s sister is in hospital and the money needs to be spent on her treatment. The applicant requests leave for this semester so that he can work full time and help his family. A response is provided to the applicant on 8 May 2015 from the Acting Head Teacher, Information Technology Networking indicating that the International Student Unit has been contacted to see what can be done for the applicant in the circumstances. The sender of the email indicates that he would like to meet the applicant to explore further options.

    ·Letter addressed ‘To it may concern’ from the Tansen Municipality Office dated 13 June 2016 indicating that the father of the applicant has been engaged in Dhaka in a business since 1998. It indicates that the applicant’s father’s business has suffered immensely since the earthquake and economic blockade. The letter certifies that the applicant’s father is one of the victims of the earthquake, the Indian blockade and the Madesi protest. His economic status is very weak causing him not to be able to take care of his family and his son’s studies in Australia.

    ·Letter dated 20 June 2016 from Nepal Bank Ltd indicating that an individual (the applicant’s father) is a well-known client of the bank. It indicates that the applicant has maintained a balance of 2,564,765 rupees which is equivalent to AU$32,568.44.

    ·Letter dated 17 June 2016 from Meily Medical Services indicating that the applicant attended the centre on 17 June 2016 stating that he feels depressed. He states that over the last 12 months the applicant has been suffering from insomnia, lack of concentration and depressed mood causing him to be unable to attend his studies. He is asking for treatment.

    ·Prescription issued to the applicant dated 17 June 2016 for Aropax.

    ·Documents indicating enrolment created on 16 June 2016 by the applicant with Hamro College in:

    oCertificate IV in Accounting to commence on 4 July 2016

    oDiploma of Accounting due to commence on 21 August 2017

    oAdvanced Diploma of Accounting due to commence on 21 August 2018.

21. The Tribunal notes that the Provider Registration and International Student Management System (PRISMS) indicates the applicant’s enrolment in these three courses commencing on the dates indicated above. PRISMS shows the Certificate IV in Accounting as being cancelled for reasons unspecified. The Diploma of Accounting and the Advanced Diploma of Accounting were cancelled due to non-commencement of studies.

22. PRISMS also indicates that the applicant enrolled in a Certificate IV in Commercial Cookery due to commence on 1 March 2017 which was cancelled on 22 March 2017 for unsatisfactory attendance.

23. The Tribunal has the following credibility concerns with claims of the applicant’s inability to study due to financial and mental health issues caused by the April 2015 Nepal earthquake. The Tribunal also has concerns as to the applicant’s study progress following the cancellation during the period that he was not restricted from study.

24. Firstly, the applicant has not been consistent in details of claims of physical damage of family property and personal injury suffered by members of his family due to the earthquake.

25. In his 7 May 2015 email to his college in Australia (described above) the applicant indicates that his two houses in Nepal are ‘down’, implying that they had been demolished, and that his sister is in hospital.

26. In contrast, in the Tribunal hearing on the remitted application the applicant indicated that his family was only on the periphery of the earthquake area and homes only suffered cracks. In contrast to the written statement, the applicant indicated in the hearing that whilst his mother was hospitalised for one week after the earthquake none of his other family members were injured.

27. The applicant has therefore been inconsistent as to the extent of damage to family property and whether it was his mother or sister who was injured in the earthquake and hospitalised.

28. When these inconsistencies were put to the applicant in the hearing he indicated that at the point that he wrote to his college indicating that his sister was in hospital he had not been able to get in contact with his family and had only heard of his family’s situation through other friends in Nepal. He indicated that he had the mistaken impression that his sister was a patient in hospital when he had been told that she had been visiting his mother who had been hospitalised.

29. The applicant indicated that his email to his college indicating that his houses were ‘down’ is a miss-expression and that there were only cracks.

30. The Tribunal does not accept that the applicant would have been given incorrect or confused information by friends in Nepal that his sister was a patient in hospital, when in fact his mother was in hospital. The Tribunal does not consider that this relatively simple piece of information could readily have been confused. The inconsistent evidence on this issue creates credibility concerns as to the applicant’s claims as to what happened to his family and their property in the earthquake.

31. The Tribunal considers that the applicant has sought to exaggerate to his college the impact of the earthquake on family property in indicating that houses were ‘down’.

32. Secondly, it is clear that the applicant was not making appropriate study progress in his Diploma of Information Technology Networking or paying fees for the course well prior to the April 2015 earthquake. The applicant indicated to the Tribunal on the remitted application that he was making appropriate progress up until the April 2015 earthquake when there is clear evidence to the contrary.

33. In the Tribunal hearing the applicant agreed that he had requested an extension to continue his Diploma of Information Technology Networking in the first half of 2015 which had originally been scheduled for completion on 30 December 2014. When the Tribunal asked the applicant whether he was properly attending classes and passing his units, he indicated that he was. He indicated that difficulties in making progress in this course only commenced after the earthquake.

1. The Tribunal put to the applicant in the hearing the following information pursuant to s.359AA of the Act.

2. The Tribunal indicated to the applicant that it had written seeking information from TAFE NSW as to the applicant’s progress and other relevant details relating to the Diploma of Information Technology Networking. The response indicates that the applicant was meant to complete the Diploma in December 2014 but he did not complete the course. The applicant provided a request for extension of study form in January 2015 and was granted the extension but he did not pay his fee for the first semester of 2015. TAFE advises that the applicant received three fee payment reminders (with the final reminder being on 17 March 2015).

3. TAFE also advises that the attendance record indicates that the applicant had an attendance rate of 43.13 percent. TAFE provided information relating to the applicant’s grading in modules/units in the course. That information indicates that the applicant was deemed competent in only one of 13 completed modules/units. There are another two units for which the applicant has been credited as competent from a credit transfer.

4. The Tribunal noted that this information was relevant because it indicated an inability of the applicant to pay fees for his course prior to the April 2015 earthquake. This in turn is undermining as to the claims made by the applicant that the earthquake caused financial problems. The information could cause the Tribunal to question the credibility of other claims made by the applicant including that the earthquake caused him mental disturbance causing him not to be able to study.

5. The information is relevant because the applicant’s poor attendance and progress in the Diploma of Information Technology Networking suggests lack of progress with the applicant’s studies in that course as being due to factors other than money or mental health issues relating to the earthquake. The lack of progress in this course could be a general discretionary factor adverse to the applicant in terms of questioning whether the applicant was making appropriate progress or effort in his studies and/or acting as a genuine student.

6. In response, the applicant indicated that he never received any notification of the requirement to pay for his course from his college. He indicated that he had not taken his exams meaning that none of his courses had been ‘completed’ and he had therefore not failed to pass any units. The applicant indicated that he only missed five or six days over a two-month period.

7. The Tribunal does not accept that if the applicant had requested an extension of study that he would not be aware that he had an obligation to pay for that study. The Tribunal does not accept that the applicant would not have received requests for payment. The Tribunal prefers the evidence of TAFE NSW that the applicant had been deemed competent in only one of 13 completed modules/units.

8. The Tribunal also accepts the evidence of TAFE NSW that the applicant had an attendance record of less than 45%. The Tribunal draws the adverse inferences put to the applicant in the hearing as a result of this information.

9. Thirdly, the applicant has provided inconsistent evidence as to details of receiving medical treatment for his claimed depression as a result of the earthquake. In the original Tribunal hearing the applicant said that he first saw his doctor in June 2015 and then every two to three months. In contrast, in the Tribunal hearing the applicant said that his first appointment post the April 2015 earthquake was with the doctor on 17 June 2016 as per the medical report provided. The applicant indicated in the hearing that he saw this doctor on perhaps another one or two occasions subsequently.

10. The Tribunal on the remitted application sought an explanation from the applicant for this starkly inconsistent evidence. Despite multiple opportunities provided to elicit an explanation, the applicant did not provide an explanation other than to say that his first medical appointment was in June 2016 and the level of his depression prevented earlier medical attention.

11. The Tribunal had written to the applicant on 11 October 2018 asking for information relating to all medical appointments that he undertook in 2015 and 2016 pertaining to depression and any other symptoms he suffered as a result of the earthquake in Nepal in April 2015. The Tribunal requested details of other dates on which consultations occurred.

12. In the response the applicant indicated that he had tried to contact the doctor he consulted on 17 June 2016 at the relevant medical centre but that they had closed and were not contactable. The applicant indicates that he continued taking medication for his depression. He has kept no documents. It is difficult for him to think straight and put documents in order because of the depression.

13. The Tribunal notes that this response, which implies that he did seek earlier medical attention, is also inconsistent with what the applicant indicated in the Tribunal hearing that the first medical attention he sought was in June 2016.

14. The Tribunal considers that this starkly inconsistent evidence is undermining of the applicant’s credibility.

15. Fourthly, the extent of the applicant’s claimed depression for the reasons claimed is not plausible to the Tribunal.

16. In the first Tribunal hearing the applicant indicated that the source of his depression after the April 2015 earthquake was because of the difficulties faced by his family and hearing difficult news in conversations with his family. Although the family were not in the immediate vicinity of the earthquake, albeit with cracks occurring in the applicant’s family home, a blockade of materials from India caused financial problems for the business of the applicant’s family.

17. The applicant indicated in the first Tribunal hearing that his depression was so significant that he did not leave the house for many months.

18. Whilst the Tribunal might accept that news of financial difficulties for his family might cause the applicant some degree of upset and worry, serious depression lasting many months and causing the applicant not to be able to study or leave the house is a very serious, and one would think, unusual, consequence of the difficulty.

19. The applicant gave evidence in the first Tribunal hearing that when he was able to contact his family several weeks after the earthquake they indicated that they wished him to continue to study in Australia. Indeed, in the first Tribunal hearing the applicant indicated, when his father eventually learned that the applicant had not continued with his studies, that his father refused to talk to him as a result.

20. As discussed with the applicant in the second Tribunal hearing on the remittal, the Tribunal struggles to accept that the situation of the applicant’s family in Nepal was so serious as to have caused the claimed depression to have been suffered by the applicant. The Tribunal is prepared to accept that there were economic issues suffered by the family business. However, the family home and the family were located in an area away from the immediate vicinity of the earthquake and therefore were not substantially physically affected. Further, the applicant’s family very much wished him to continue his studies in Australia. This wish was so strong that the applicant’s father learning that the applicant had failed to study has caused a breakdown in communications between them.

21. In that context, as put to the applicant in the second hearing the Tribunal has difficulty accepting that the situation of the applicant’s family can have been so severe following the earthquake to have caused the applicant the long-term and serious depression claimed. The Tribunal would have thought, that if the desire of the applicant’s family was that the applicant continued to study in Australia, that the most logical response of the applicant would have been to continue his studies to please his family. Instead, the applicant’s failure to study would appear to have simply upset his family, particularly his father.

22. In the hearing the applicant indicated that his severe response to the earthquake was because he was part of a family group and he was not able to make arrangements to return to Nepal. He agreed that both his parents were angry because he did not continue his studies.

23. The Tribunal maintains its concerns as to the plausibility of the applicant’s claimed reaction in the circumstances.

24. Fifthly, the applicant did not continue his planned studies at the time of his response to the NOICC. The applicant was enrolled in a Certificate IV in Accounting that was due to commence on 4 July 2016. The Tribunal notes that there was no study limitation on the applicant’s bridging visa at this point in time. A no study limitation was placed on his bridging visa on 30 June 2017. A Certificate IV in Commercial Cookery that the applicant was enrolled in was cancelled on 22 March 2017 on the basis of unsatisfactory attendance.

25. In the hearing, the applicant indicated that he did not study because he was not entitled to study on his bridging visa. This is not the case up until 30 June 2017. Such a claim is also inconsistent with the applicant commencing a Certificate IV in Commercial Cookery.

26. The applicant’s failure to progress with the Certificate IV in Accounting and the cancellation of the Certificate IV in Commercial Cookery reinforces other more significant concerns identified in relation to the applicant’s bona fides and commitment to study in Australia.

27. The Tribunal also noted to the applicant in the hearing that his 573 visa requires him to be currently enrolled in a higher education sector course (condition 8516). The enrolments at the time of responding to the NOICC would not meet a condition 8516 in the event that the visa was reinstated as they were not higher education sector courses.

28. In the hearing the applicant indicated that he wishes to continue his Diploma of Information Technology Networking and then progress to a Bachelor course. The Tribunal is not satisfied of this in light of the cumulative consideration of all the credibility concerns identified in this decision.

29. The Tribunal considered these five credibility concerns cumulatively.

30. The Tribunal does not find the applicant a credible or truthful witness. The Tribunal is not satisfied that the applicant ceased to be enrolled in a registered course on 1 May 2015 or failed to progress or pay fees in the Diploma of Information Technology Networking due to the Nepal earthquake or that this has been a cause of a poor study history since.

31. The Tribunal is not satisfied that the breach of condition 8202 is a product of extenuating circumstances beyond the applicant’s control. The limited progress in study since cancellation, while he continued to have rights to study, and his failure to be enrolled in a higher education sector course, when reinstatement of his visa would require him to be enrolled in such a course, are discretionary factors significantly adverse to the applicant.

32. The applicant indicated in the hearing that his intention in being in Australia has been to study. The Tribunal does not consider the applicant has been meeting this objective for a significant period. This is adverse to the applicant.

33. The applicant indicated in the hearing that the hardship to him if the visa remains cancelled and his compelling reason to remain in Australia is the necessity that he complete his studies in Australia which will be denied if the visa remains cancelled. The Tribunal does not consider that the applicant has demonstrated a commitment to study in Australia which suggests that not continuing with his studies would be a significant hardship for the applicant or constitute a compelling need to remain in Australia.

34. The Tribunal does not consider there is evidence which establishes the breach of other visas conditions by the applicant other than condition 8516 to be enrolled in a higher education sector course from the time of the breach until cancellation.

35. The Tribunal accepts that a hardship to the applicant if the visa remains cancelled will be limitations on his ability to apply for other visas onshore. The Tribunal accepts that if the visa remains cancelled that the applicant could have no valid visa to remain in Australia but considers that the applicant would be entitled to continue to apply for and hold a bridging visa to legitimise his status.

36. The applicant indicated in the hearing that his intention is to return to Nepal after completing his studies and that he does not have a fear of persecution or significant harm in Nepal.

37. The Tribunal considers that these are the relevant discretionary factors.

38. In summary, the applicant’s explanations as to why his enrolment was cancelled and poor study history lack credibility for the reasons indicated. The Tribunal finds the applicant an untruthful and untrustworthy witness. The applicant has not demonstrated extenuating circumstances beyond his control for the failure to be enrolled in a registered course or for his poor study performance. The applicant has not undertaken studies since cancellation when he had an entitlement to study that demonstrate a genuine ongoing intention to undertake study commensurate with the requirements of his visa.

39. These matters considered cumulatively are significantly adverse to the applicant in considering the discretion as to whether the visa should be cancelled. They are not outweighed by the hardship to the applicant or any other discretionary factors in support of not cancelling the visa. Balancing discretionary factors, the Tribunal considers that it should exercise its discretion to cancel the visa.

40. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    David McCulloch
    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.