Srivastava (Migration)

[2020] AATA 1733

Srivastava (Migration) [2020] AATA 1733 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alankar Srivastava

CASE NUMBER:  1830955

DIBP REFERENCE(S):  BCC2018/3804638

MEMBER:Michael Bradford

DATE AND TIME OF

ORAL DECISION AND REASONS:         7 February 2020 at 11:01 am (NSW time)

DATE OF WRITTEN RECORD:                5 May 2020

PLACE OF DECISION:  Sydney

Statement made on 05 May 2020 at 2:03pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – low result for foundation course and non-commencement of degree course – working to earn money to pay for courses and undertaking internships in home country – no approach to department – completion of diploma course and enrolment in different degree course – future study and work goals – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(b)

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 October 2018 to cancel the applicant’s Subclass 573 Student (Temporary) (Class TU) visa under Section 116(1)(b) of the Migration Act 1958 (the Act).

2.    At the hearing on 7 February 2020 the Tribunal made an oral decision and gave oral reasons for that decision. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

3.    The delegate cancelled the visa on the basis that the applicant had not complied with the provisions of condition 8202 in that he had not been enrolled in a registered course of study since 4 August 2017. The issues on the review application in this case are whether that ground for cancellation is made out and, if so, whether the visa should be cancelled.

4.    On 27 September 2018 the Department sent to the applicant a Notice of Intention to Consider Cancellation of his visa and invited him to comment on a possible breach of condition 8202(2)(a) arising from his non-enrolment. The applicant responded to the NOICC on the same day, that is to say 27 September 2018, by forwarding an email to the Department in which he said, among other things, that he had applied for enrolment in some unidentified courses at La Trobe University and Macquarie University at their Sydney campuses. He went on to say in this email that he had done so prior to receiving the NOICC, that he had been doing some internships and that he had been working part-time to generate funds to pay for his University courses.

5.    In this email he goes on to note that he was a self-funded student and that any decision to cancel his visa would have huge consequences for him and his family.  Attached to the email is a document from Macquarie University which does acknowledge receipt of an application for enrolment from the applicant in a Bachelor of Business Administration program at Macquarie.  This document, which appears at page 20 of the Department’s file, is undated.

6.    No other information was provided to the delegate at that or any other time prior to the cancellation of his visa, apparently.

7.    On 22 October 2018, the applicant was notified by the Department that his visa had been cancelled and, again, on the same date, namely 22 October 2018, the review application was filed, together with a document entitled Statement of Purpose, which I will return to later in these reasons.  At that time, the applicant also sent to the Department another email in which he said that he had already obtained enrolment at a University, namely UTS; that he had paid the fees for that course and that he had started his classes and invited the Department to check his enrolment status.

8.    He also attached to that email a Confirmation of Enrolment (COE) for his enrolment in a Diploma of Business at UTS, a document which I will come back to in a moment. 

9.    In his oral evidence today, the applicant said that the fees which he was referring to in the email of 22 October were about $12,000, a sum which he had paid for the first semester of the Diploma course.

10.    The Tribunal acknowledged receipt of the Review Application by sending to the applicant an email to that effect.  In this email he was invited to provide any documents that he wished to provide in support of his application as soon as possible but no documents were received at that time.

11.    In due course, a hearing invitation was sent to the applicant on 7 January 2020, notifying him that a hearing had been arranged to take place today, 7 February 2020.  In that email the applicant was also asked to read, complete and return to the Tribunal the hearing response form. He was also asked to provide all documents he intended to rely upon in support of his case within seven days of receipt of the email. The applicant did, in fact, respond to the invitation by returning to the Tribunal the online response form in which he accepted the invitation.  Again, no other documents were provided by him in support of his case at that time.

12.    For the purposes of this review the Tribunal obtained from sources other than the applicant a PRISMS record and Movements details the contents of which were largely uncontroversial and will be considered later in these reasons.

13.    The applicant appeared today at the hearing to give evidence and present his case. He did not require an interpreter. The applicant demonstrated clearly enough that he had a reasonably good understanding of spoken and written English and he gave his oral evidence in English without any apparent difficulty. 

14.    At the hearing today the applicant provided to the Tribunal a transcript of his studies in the Diploma of Business at UTS.  This transcript, which is headed “UTS Insearch Student Record”, contains details of his studies in that course up to 6 February of this year. On the basis of this evidence the Tribunal is satisfied that the applicant has indeed engaged in studies in the Diploma of Business at UTS and that he has, in fact, completed all of the subject requirements in a timely fashion.

15.    For the reasons which follow, the Tribunal has concluded that the delegate’s decision to cancel the applicant’s visa should be set aside.

16.    Turning firstly to the delegate’s decision, his findings that the applicant had not been enrolled in a registered course of study at the time of that decision and that he had not been so enrolled since 4 August 2017 are not in dispute. The applicant confirmed in his oral evidence today that he had not been enrolled since that date at the time of the delegate’s decision and that, consequently, he readily accepted in his oral evidence that he had been in breach of condition 8202(2)(a) as from 4 August 2017, this being the date on which his enrolment in a Bachelor of Commerce at the University of New South Wales (UNSW) had been cancelled.

17.    The delegate apparently had a PRISMS record which indicated as much and, accordingly, the delegate was satisfied that the applicant had breached condition 8202(2)(a) as from 4 August 2017 and that a ground for cancellation of his visa had been made out.

1. The delegate went on to consider whether the visa should be cancelled.  In doing that, he examined various factors which related to the discretionary aspects of his decision. 

2. The delegate took into account the applicant’s response to the NOICC and noted that he had done internships and worked part-time to pay his school fees.  Of particular concern was the fact that the applicant had not provided any explanation as to why he had not studied for a period of about 14 months, that is to say during the period between August 2017 and October 2018, whilst he was holding a student visa.  The delegate went on to note that the PRISMS record available to him showed that after the NOICC was served on 27 September 2018 the applicant enrolled in a Diploma of Business and Bachelor of Business at UTS. He went on to find that the applicant’s enrolment in these courses at that stage was an attempt to prolong his stay in Australia, given that this had occurred after the NOICC was served. 

3. The delegate then went on to note that the applicant had been in breach of the condition and he regarded that breach to be significant.  He did not see any significance in the fact that the applicant may have complied with other conditions of the visa. As to the degree of hardship, the delegate accepted that the cancellation would have consequences for him and his family but went on to note that he had not provided any evidence to substantiate these claims. He acknowledged there would be some hardship but noted that the applicant could apply for a Bridging Visa to give him some time to finalise outstanding matters before his departure.

4. As to the circumstances in which the ground for cancellation had arisen, the delegate was not satisfied that were any extenuating circumstances again noting the timing of his enrolment in the UTS courses.

5. On balance, the delegate was satisfied that the reasons for cancelling the visa outweighed any reasons not to cancel it.  Accordingly, the visa was cancelled.

6. The evidence before the Tribunal, in particular the Movements record, plainly reveals that the subject visa was a Student Temporary Class TU subclass 573 visa, which had been granted to the applicant on 5 June 2015, that is to say shortly prior to his arrival in Australia. According to this record the visa was granted for a period of three and half years, or thereabouts, with a cease date of 22 October 2018.

7. According to the evidence before the Tribunal, it is clear that one of the conditions on which the visa was granted was condition 8202. At the hearing of his review application today, the applicant did not dispute, indeed it was admitted, that at the time of the delegate’s decision he had not in fact been enrolled in a registered course of study since August 2017.

8. This being so, the only real issue on the application is whether, on the evidence before the Tribunal, the visa should be cancelled under section 116(1)(b) of the Act.

9. In this case, there is some very significant evidence which the applicant has provided to the Tribunal, which was not before the delegate and which, in the Tribunal’s view, does put a very different complexion on the discretionary aspects of the case.

10. The Tribunal accepts that, at the time of the delegate’s decision, the applicant had only recently secured enrolment in the Diploma and Bachelor courses at UTS. The documentary evidence indicates that he obtained the COEs for both of these courses on 12 October 2018, that is to say shortly before his visa was cancelled. So, it would appear on the evidence that the applicant was clearly not enrolled in a registered course of study between 4 August 2017 and 12 October 2018.  This is on any view an extensive period of time.

11. At the hearing today the applicant was asked to explain this long period of non-enrolment.  He said that he completed the Foundation Program referred to in the PRISMS record in or about June 2017.  He said that the Extended Program which was due to commence in July 2015 and finish in June 2016 was not in fact completed by him on that date.  He had apparently failed some subjects which he had to repeat in the first half of 2017 and completed the requirements of the Program in June of that year.

12. The Tribunal accepts that he did so even though the PRISMS record indicates, or at least appears to indicate, that there were in fact two Foundation Programs undertaken in those years. The information in PRISMS, insofar as it relates to the sequence in which these Foundation Programs are said to have been undertaken, appears to be implausible.

13. This being so, the Tribunal prefers the applicant’s oral evidence about this and finds that he did in fact only complete one Foundation Program including an extension to that Program and that he took about two years to complete this course.

14. The applicant gave evidence today that, as a result of his studies in the Foundation course, he achieved a GPA ranking of 5.9 which he said was too low for entry into the Bachelor of Commerce course in which he had been enrolled at UNSW.  He said that the threshold GPA for entry in that course was 7.3 and he was well below that.  Accordingly, he could not commence his studies in that course, and, consequently, his enrolment in this course was cancelled on 4 August 2017. The Tribunal accepts this to be the likely reason for that cancellation.

15. The applicant said in his oral evidence that his first reaction to this was to panic but he then sought advice from student advisers or counsellors at UNSW which was broadly to the effect that either he should repeat the Foundation course to see if he could reach the threshold GPA or obtain some commercial exposure.  He said in his evidence that as he did not want to repeat the Foundation course, he decided that he would accept the advice and try to obtain some commercial experience. Again, the Tribunal is prepared to accept this evidence.

16. In the applicant’s Statement of Purpose, a document which can be found in the Tribunal’s paper file at pages 10 and 10A, he gives some evidence concerning what he did after completing the Foundation course. He said in this document that he decided to move back to India for the holidays as he felt that he had not been giving his best here. So he went back to India and obtained an internship at Mahindra Automotive for a short period during June and July 2017. He said that he acquired some knowledge about the workings of that business during that time. The Movements record confirms his movements to and from India at about this stage. The Tribunal thus has no real difficulty in accepting that that in fact is what he did.

17. The applicant goes on to say in the Statement that he then obtained another internship at Navigate Shipping from December 2017 to January 2018.  He said that he learned quite a lot during his internship there. He said that his father had been able to make these arrangements because he was the owner and operator of a business which, as the Tribunal understands it, was broadly involved in providing maintenance services for ships. Again, this seems logical enough and the Tribunal has no real difficulty in accepting the applicant’s evidence that his father was instrumental in obtaining this internship for him.

18. In his Statement he says that having completed that internship he obtained a good understanding of what he describes as ‘the work culture,’ understood the importance of having a good University education to develop and grow in a profession.  He goes on to say that he became aware that he could not take short-cuts and that he needed to create a solid foundation of his own.  He says that he returned to Australia, there was at first some inconsistency between his evidence and the Movements record as to when he actually did this, but he eventually accepted that it was in early February 2018, this being consistent with the relevant detail in that record. Again, the Tribunal accepts that the applicant did undertake these internships and that he returned to Australia in early 2018.

19. In his oral evidence he said that he came back and started looking for a job here but was unsuccessful.  He said that he spent most of 2018 looking for a job. The Tribunal accepts that was doing so at least during the period from February to September 2018.

20. When asked at the hearing whether he knew that the conditions attached to his visa required him to maintain enrolment in a registered course or courses of study he accepted that he did and that the failure to take steps in this direction was entirely his own fault. He said that he was not aware that he could go back to the Department and ask for help. He said that it a very stressful time and that he was worried about his future during this period.

21. These are of course frank admissions against his interests additional to those which relate to his extensive period of non-enrolment in a registered course during the period from 4 August 2017 to 12 October 2018. The Tribunal will come back to this explanation in a moment, but, on any view, the breach by the applicant of condition 8202(2)(a) is clearly established on the evidence and not disputed by him and the power to cancel his visa under 116(1)(b) is clearly enlivened.

22. As to whether the visa should be cancelled, having found that the applicant has not complied with a condition of his visa, the Tribunal must consider whether it should be cancelled. There are no matters specified in the Act which must be considered in the exercise of this discretionary power. Obviously, regard must be had to the individual circumstances of this case, including the matters raised by the applicant together with other matters to in the Department’s Procedures Advice Manual (PAM). These matters will be specifically addressed later in these reasons.

23. Before coming to the relevant detail of the applicant’s documentary case and oral evidence in relation to the discretionary aspects, it would already be apparent to the reader that the Tribunal has accepted the bulk of the applicant’s evidence. The Tribunal was impressed with the articulate and careful way in which he gave his evidence and with his frank admissions. He also appeared to be doing his best to accurately recollect important detail and to fully inform the Tribunal of the circumstances in which the breach occurred and to provide other important information in relation to the issues in the case. Having heard what, the applicant has said today and having considered his evidence against the documentary case, the Tribunal is generally prepared to accept the applicant’s oral evidence whether or not there is any independent corroboration of it. Overall, much of the applicant’s evidence is indeed corroborated in important respects by contemporaneous documents which he has provided to the Tribunal and which have otherwise been available to it.

24. For reasons that I will come to in a moment, there is some significant evidence in this case which the applicant has put before the Tribunal which, as I have said, does put a rather different complexion on the discretionary aspects.

25. The applicant was born in India in 1996 and is thus presently 23 years of age. He arrived in Australia on a TE 573 visa in July 2015 when he was about 19 years of age.  By that stage he had completed his secondary education in India and Singapore.  He said in his Statement of Purpose that his parents moved to Singapore to enable him and his brother to obtain a better education and that the applicant studied grades 11 and 12 at the Canadian International School in Singapore.

26. He gave some evidence regarding his experiences at that school and said that his parents moved there to further his and his brother’s education. He then went on in the Statement to say that he applied for enrolment in the UNSW Foundation Program commencing this course almost immediately on his arrival in Australia in about July 2015 and eventually completing it in about June 2017.  As noted earlier, by that stage his enrolment in the Bachelor of Commerce course at UNSW had been cancelled for the reasons that he gave in his oral evidence.

27. As I have indicated, the applicant went back to India to gain some commercial experience and returned here in February 2018 to look for work instead of taking steps to secure enrolment in a registered course of study, as he was required to do under the conditions of his visa.  This clearly was a mistake of some dimension. In the period from February 2018 to October 2018, which is about eight (8) months, the applicant continued to be unenrolled despite the fact that he was well aware of the conditions which attached to his visa.

28. The applicant had some correspondence with the Department in September 2018. He was informed in an email of 14 September 2018 that the Department was wanting to give him an important notice regarding his visa and he accepted in his evidence today that he was also aware from this time that tit was considering cancelling his visa. Ultimately, the applicant accepted, I think to his credit, that he had not taken any steps to secure enrolment in a registered course of study prior to receiving the email of 14 September from the Department.  He said in his evidence that having got that email, he then spoke to somebody at IDP who then arranged for some enrolment applications to be processed, including the one to Latrobe which I mentioned previously.

1. As I have also indicated, the NOICC was issued on 27 September 2018.  The applicant responded to that on the same date with a very short email, perhaps with the benefit of hindsight rather glib and certainly uninformative. On 12 October 2018 the applicant secured enrolment in the Diploma and Bachelor courses at UTS, as is indicated in the COEs for these courses.

2. The COE for the Diploma indicates that this course was due to commence on 8 October 2018 and to finish on 17 January 2020, that is to say a period of about 15 months at a cost of about $36,000 AUD.  The COE for the Bachelor course, also at UTS, indicates a start date of 17 February this year and an end date of 31 December 2021, that is to say a period of about 20 months. As was noted earlier, the applicant did inform the delegate on or about 23 October 2018 that he had in fact secured these enrolments, that he was in fact attending classes in the Diploma and that he had paid his tuition fees for the first semester.

3. By that stage it was of course too late for the delegate to take these matters into account as a decision had already been made to cancel the applicant’s visa.

4. The Tribunal accepts that at the time the applicant sent the email of 22 October to the Department he had in fact paid from his own funds the cost of the tuition for the first semester, a sum of about $12,000. 

5. Contrary to what the PRISMS record suggests, the applicant has provided a transcript of his studies in the Diploma which indicates that he has, in fact, completed the requirements for the Diploma. The transcript contains a record of his studies up to 6 February 2020 and indicates that the applicant has, in fact, completed 12 courses for the Diploma. According to this document, the course began in 2018 and he successfully completed the three semesters during 2019.

6. The transcript also reveals, rather tellingly, that this applicant has obtained very sound results in the Diploma. Over the 12 completed courses he has obtained three passes and the others are either at the distinction or credit level. In his Statement of Purpose apart from giving some history of his education in Singapore and his movements to and from India to participate in these internships, the applicant says that he wanted to further his horizons by studying the Diploma because it would give him some knowledge to undertake the Bachelors course. He wanted to be able to use this knowledge to help his parents in their business in Lucknow.

7. Apparently, the applicant’s father conducts his business from premises in Lucknow and the applicant wanted the Diploma to be a steppingstone to what he describes as greater success and happiness in life. He went on to say in the Statement that his future plans are to gain some professional experience after his Bachelor’s course. In his oral evidence he said that he may want to undertake a Masters course at some stage in the future but, more immediately, he wanted to help his father in the family business, to work hard and make sure that his parents were looked after.

8. In his oral evidence the applicant said that he was confident of completing the Bachelors course on time and that when he tries, he can get things done. Bearing in mind his results in the Diploma, the Tribunal is prepared to accept that the applicant is indeed a reasonably proficient student who is probably well capable of completing a Bachelor’s degree, and that if he puts his mind to it he could obtain better than average results which will assist him further down the track in his studies or commercial aspirations.

9. Business courses of this kind appear to suit this applicant in that he has shown a willingness, in more recent times at least, to take opportunities and obtain commercial experience and it can be reasonably anticipated that this experience will have helped him focus on the importance of obtaining knowledge, skills and training if he is going to go anywhere with a career in the business field. The Tribunal is prepared to accept his evidence that he wants to pursue a career in business, like his father, and that if he applies himself, he will in all likelihood complete the Bachelor course on time. His long-term intentions after that may be a little fluid and obscure but he cannot really be criticised for that. The inherent probabilities are that he will get some commercial experience after he completes the Bachelor course.

10. He indicated in his oral evidence that he may want to do this in Australia, or he may go back to India to help his parents with a view, ultimately, to study at the Masters level. The Tribunal is prepared to accept that evidence and it takes the view that he can and should be given the opportunity to complete his studies here despite the fact that he has clearly been in breach, and significantly in breach, of a fundamental condition of his Higher Education Sector visa. 

11. There is no doubt that mistakes have been made by this applicant during his stay here. To come back to Australia in February 2018 and not go to the Department to seek help, or at least to inform the Department of his situation, was indeed a mistake of some dimension. The applicant accepted as much in his evidence.  But international students do make mistakes. Students who come out here to educate themselves on a Higher Education Sector visa are expected to comply with conditions attaching to their visa, the Tribunal expects them to do that as does the Department. There are of course good reasons for these conditions and to insist on compliance with them. But the question for the Tribunal in this case is whether allowances can and should be made for this applicant given his failure to secure enrolment during what is a fairly extensive period.

12. The Tribunal accepts the applicant’s evidence that his enrolment in the Commerce course was cancelled because he could not achieve the required GPA.  The Tribunal also accepts his evidence that he did seek advice from counsellors at UNSW at that time and that they did tell him to either repeat the Foundation course or get some commercial experience. The applicant chose the second of these options. There may have been an element of panic in that decision although I have some doubt about this aspect of the applicant’s evidence. But, in any event, he most certainly did go back to India and he did get some commercial experience there. This applicant has shown that he is not averse to taking advice, and it is clear that he did come back here in February 2018. The bigger mistake in this case was, of course, what he did after he returned that namely nothing in the way of getting his study program back on track until he came under the Department’s notice in September 2018.

13. It may be, as the delegate has already pointed out, that what he did afterwards was reactionary and designed to maintain a presence in Australia. And that is clearly not good. The Tribunal takes it into account and gives weight to it.  But the question now is whether his visa should be cancelled because of it in circumstances where he has shown a willingness and capacity to study effectively and for legitimate reasons. He said in his oral evidence that when his visa was cancelled, he sought some advice from his parents, apparently, and his father said to him “Stay in Australia, study as hard as you can.”  Again, it appears to the Tribunal that the applicant has listened to that advice and that it has influenced him in what he has done in Australia since October 2018.

14. The academic transcript of his Diploma indicates as much. The Tribunal is prepared to find that he is capable student, and one who will study hard. He has applied himself in recent times and he is likely to continue to apply himself in his remaining studies here. This is not a case in which the Tribunal is dealing with a malingering student who simply does not want to go home. Although mistakes have been made, the applicant has accepted responsibility for them, as indeed he should. He has lost some time as a result of them, but he has finally put his runs on the board. All of these considerations must be taken into account and, together with the other circumstances, weighed and balanced at the discretionary level.

15. The applicant indicated in his oral evidence that his education expenses for the Diploma, apart from the first semester, have been met by his parents. In other words, they have provided funds in the order of $24,000 to enable him to complete that course. The Tribunal accepts that evidence. He went on to say that his parents would likely have to provide the funds for the Bachelor course. The tuition fee for this course is in the order of $72,520 The Tribunal has no reason not to accept the applicant’s evidence that his parents will have to pay these fees.

16. This being the case, the Tribunal is prepared to find that the applicant genuinely wants to complete the Bachelors course, has the ability to do so and that he is likely to complete it on time, that is to say at the end of 2021.

17. Very often self-serving statements to that effect are made by student applicants whose visas have been cancelled or refused and who are thus facing deportation but, in this case, the objective features indicate that this applicant has a genuine intention and desire to complete his study program before returning to India and utilising the knowledge and skills he will have acquired. The tribunal is prepared to accept his documented statements and his oral evidence to this effect. These are, in the Tribunal’s view, very weighty considerations in the circumstances of this particular case.

18. The Tribunal is satisfied that this applicant does indeed have a close relationship with his parents. They demonstrated a willingness to assist him with his education even before he came out to Australia.  And they are continuing to support him here. These are important and weighty factors. The Tribunal asked him today what his parents would think if he was to go back home with just a Diploma to show for his time in Australia and he indicated that it would not be enough to obtain employment of the sort that he wants to seek. He said that his parents have indicated that his education is very important to them and that they want him to finish what he has started. In other words, to obtain at least a Bachelor’s degree in Australia and return to India, if that is what is to happen, so that he can help them operate the family business.

19. The Tribunal is also prepared to accept that evidence and to find that he is indeed close to his parents, that he does talk to them every day or at least most days, and that they will, indeed, be very disappointed if he was to return home at this stage. Asserted hardship is almost always difficult to assess in these cases. Very often the Tribunal has unsatisfactory evidence of the most general kind. But in this case the Tribunal accepts that the applicant’s parents have invested time, resources and energy into his education and that they would, indeed, be extremely disappointed if the applicant had to return home now. They have already invested at least $24,000 in tuition fees, and I suspect much more than that overall. The Foundation course was not cheap and was most probably funded by his parents.

20. So, there is an expectation interest in this case arising from his parents’ ongoing involvement in his education here.

21. At the end of the day, this is in many respects a borderline case. The Tribunal can readily see why the delegate reached the decision that he did. But the Tribunal has to look at the applicant’s circumstances and his situation as it now presents itself at the time of this decision. This applicant appears to the Tribunal to have turned the corner, and just in time. Without having established an enrolment and satisfactory progress in the Diploma there could only be one result in this application, and that is of course that the delegate’s decision would have been affirmed.  But, as I said, although mistakes have been made, the Tribunal is prepared to make allowances for them in this case.

22. The Bachelor’s course is about to commence. The Tribunal finds there would be a significant level of financial and other hardship to the applicant and his parents if he were prevented from undertaking this course. This too is a matter which attracts considerable weight in the overall circumstances of this case.

23. So far as his past and present conduct is concerned towards the Department, there is nothing before the Tribunal to indicate that he has not cooperated with the Department in his dealings with it, at least since receiving the NOICC, and he has engaged in the review process by providing information and in responding to other requests from time to time although not always in a timely fashion, I might add, but it is better to provide documents late than not to provide them at all. Certainly, the transcript document which he provided today, at the hearing, in the Tribunal’s view puts a quite different complexion on certain aspects of his review case. The Tribunal expects that documents will be provided to the Tribunal in a timely fashion although, to be fair, as the applicant has only just completed the requirements for the Diploma this document has only recently become available to him.

24. As to whether there are any mandatory legal consequences which will attach to a cancellation decision, the Tribunal considers it unlikely that the applicant would be detained if his visa remains cancelled and that he would have had a limited period of time in which to leave the country.  But these consequences are in this case now academic and, in any event, they are the result of the operation of the migration laws and no weight can or need be given to them.

25. There are no international obligations which the Tribunal need consider.

26. As to whether there are any other relevant matters, the Tribunal notes that the 573 visa has, of course, expired and that there would be a need for the Department to consider whether to issue a fresh visa to the applicant to enable him to complete his studies here. Either he would, presumably, apply for a new 573 visa, or perhaps a student subclass 500 visa. These are of course not matters which the Tribunal need address or be concerned about.

27. In summary, the Bachelor’s course is seen to be a suitable course for this applicant given his stated needs, academic capabilities and eventual aspirations. Having considered all the evidence, the Tribunal accepts that the applicant genuinely wishes to complete his studies in Australia by undertaking study in this course and considers that he should be given the opportunity to do so. 

28. Overall, the considerations set out above are of sufficient weight to enable the Tribunal to exercise its discretion to set aside the cancellation.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

DECISION

1. The decision is that the Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s subclass 573 Higher Education Sector visa.

Michael Bradford
Member