Tanim (Migration)

Tanim (Migration) [2020] AATA 139 (30 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Tariqul Islam Tanim
CASE NUMBER:  1709075
HOME AFFAIRS REFERENCE(S):          BCC2017/730405
MEMBER:Justin Owen
DATE:30 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Statement made on 30 January 2020 at 2:52pm

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 – purpose of stay – degree of hardship – Australian citizen partner’s mental health issues – responsibility to comply with visa conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 April 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant is a national of Bangladesh born 19 September 1993. His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 17 November 2014 and was subject to condition 8202. The visa had a stay period until 30 August 2017. On 27 March 2017 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 had ceased to be enrolled in a registered course on 5 November 2016. The applicant responded to the NOICC on 31 March 2017 and 14 April 2017. On 21 April 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.
The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 5 December 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 21 April 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 5 November 2016. At the time of the delegate’s decision of 21 April 2017 the applicant therefore had not been enrolled for a total of over 5 months. The Tribunal notes that the applicant did enrol in a Bachelor of Business (Accounting) course after the issuance of the NOICC on 27 March 2017 which was subsequently abandoned by the applicant.
At the hearing the applicant confirmed in questioning by the Tribunal that he had not been enrolled in a registered course of study during this period of around 4 months.
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
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 Procedural Instruction ‘General visa cancellation powers’.
The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.
The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia.
At the hearing the applicant said education was his first priority to remain in Australia. He said his second priority was his girlfriend and partner who is an Australian citizen. The applicant said he had applied for a Partner visa on 27 July 2018 and had been in a relationship now for four years. He said he and his partner had lived together now for three years.
The Tribunal notes from the decision record the applicant supplied that, according to PRISMS records, the applicant was granted his 573 Higher Education Student visa on 17 November 2014 with a CoE for a Bachelor of Information Technology (Network Security). This was cancelled for unsatisfactory course progress. The applicant then enrolled in a Bachelor of Professional Accounting at Holmes Institute that was cancelled on 16 August 2016 for ‘student notifies cessation of studies’. The applicant enrolled in a General English course at International Education Specialist College Pty Ltd which finished on 4 November 2016. The decision record states that the applicant had not been enrolled in a registered course of study approved for a 573 Higher Education student visa since 16 August 2016.
At the hearing the applicant discussed his failure to remain enrol in a registered course at the higher education visa level.
The applicant explained to the Tribunal he in fact enrolled in a Diploma of Accounting course just a few months later, in October 2016. He said he completed this course successfully in January 2017 which the Tribunal accepts. He said he subsequently discovered it was not a registered course of study at the Higher Education level as required by his visa, rather it was a Vocational Education level course. The applicant said he had been planning to start a new course at the higher education level in March 2017 but in that same month the Department informed him of his cancellation. The applicant said he told the Department he was going to enrol in a new course and gave them his new CoE. He stated the Department then asked him why he had not been enrolled in a registered course of study since August 2016. The applicant claimed he told them he had been studying a Diploma of Accounting between October 2016 and January 2017 but subsequently had discovered it was not a Higher Education level registered course of study.
The applicant states that he completed the Diploma of Accounting in January 2017. The Tribunal asked the applicant if he had completed any further studies since that time. The applicant said he had not. He explained that he obtained a COE in a Bachelor of Business (Accounting) at Polytechnic Institute of Australia commencing in March 2017. He states he applied for this around February 2017, prior to receiving the NOICC from the Department. The Tribunal notes that the applicant provided the delegate with a copy of his COE (D1, Folio. 12) which states he was due to commence the course on 27 March 2017. The applicant told the Tribunal he paid his initial fees but never commenced classes.
The applicant said he had had issues paying his tuition fees in March 2017 when they were due. The applicant raised with the Tribunal issues he had had with his partner and the impact that had had upon his enrolment. He stated his partner had anger issues and in March 2017 he had been stabbed in the hand by her which led to Police involvement. He said that issues such as this compounded and meant he didn’t pay his fees any earlier than March 2017.
The Tribunal asked the applicant why he had not enrolled and participated in a course of study since March 2017. He said after paying half the fees to the Polytechnic Institute of Australia for the Bachelor course, he had also been informed by the Department that his visa had been cancelled. He said he asked the Department what to do. He said he was told he could appeal through the Tribunal and it would take some time. The applicant said he did not start his course because he was concerned that he might be asked to depart Australia in the meantime. The applicant confirmed that his Bridging visa he was then granted after the Department’s cancellation of his Student visa had study rights attached to it as well as work rights.
The Tribunal has considered the evidence before it. The Tribunal does not, based upon the evidence before it, consider that the purpose of the applicant’s stay in Australia is study and he has a compelling need to remain in Australia.
The Tribunal notes that the applicant has not enrolled in a registered course of study for almost three years despite holding a Bridging visa that he states allows him to undertake study. The Tribunal notes the applicant stated that he was reticent to enrol in a new course of study whilst his visa cancellation was under review as he had concerns that he would lose any fees he had paid. The applicant also stated that he had the understanding from the Department that any review of his matter would be held in a matter of months rather than years, intimating that if he was aware the Tribunal review process would take place some substantial time later, he may have indeed have enrolled and completed a Higher Education course of study. The Tribunal has considered the applicant’s arguments but gives them little weight. The Tribunal considers the applicant has had ample opportunity to recommence his studies at the higher education level given his Bridging visa permitted him to undertake such studies. The Tribunal acknowledges the issues he has had with his partner in the past but does not consider that they represent a plausible reason as to why he has failed to commit to his higher education studies for a significant period of time. Whilst the Tribunal acknowledges the applicant may have faced some uncertainty as to when his review was to be undertaken and had some concerns as to any further financial investment in education, the applicant was originally granted a Student visa for the purposes of study. In the Tribunal’s opinion he has illustrated little interest in recommencing his studies since the time of his cancellation in April 2017 and there is no evidence beyond the applicant’s oral testimony of any genuine efforts the applicant has made since his cancellation to recommit to higher education. The Tribunal does not consider the purpose of the applicant’s travel to and stay in Australia is study at the higher education level.
The Tribunal has also considered the applicant’s argument that he believed the course he was enrolled in between late 2016 and January 2017 – the Diploma of Accounting – was an eligible Higher Education course. The applicant in his written submission to the Department stated he hoped he could study the Diploma before claiming credit for units completed in a Bachelor-level accounting degree. The applicant has blamed his then agent for the error in enrolling in a vocational education level course instead of a Higher Education course of study. The Tribunal notes that the applicant is ultimately responsible for his own visa and the requirements and conditions attached. The Tribunal is of the opinion the applicant cannot essentially outsource all responsibility for such a significant error in his enrolment to a representative, even taking into account the quality of the service provided by his then education adviser. The applicant conceded he had received correspondence from the Department when granted a visa that outlined the conditions of the visa and the potential consequences of non-compliance. The applicant also stated he has previously held a Vocational Education 572 Student visa. The Tribunal reasonably considers the applicant has some experience of the Student visa system and the differences in study and course requirements between the 573 and 572 visas.
The Tribunal also notes the applicant’s earlier academic record as outlined in the decision record he provided the Tribunal since being granted his 573 Higher Education visa in November 2014. The applicant enrolled in a Bachelor of Information Technology (Network Security) at that time which was cancelled for unsatisfactory course progress. The applicant has not completed any courses of study at the higher education level, a period at the time of decision of over five years. The Tribunal considers on the evidence before it, nevertheless taking into account the applicant’s submissions concerning errors he claims he made in his enrolment and the impact family issues have had upon him, that he does not have an intention to study at the higher education level.
On the evidence before it, the Tribunal is of the opinion that the applicant’s main purpose in Australia is not the study of a registered course at the higher education level. Rather, the applicant’s principal purpose, in the Tribunal’s opinion, is to remain with his partner and obtain a Partner visa that may ultimately allow the applicant to remain in Australia on a permanent basis. The application was lodged, according to the applicant, with the Department over 18 months ago. The Tribunal notes the applicant’s NSW Relationship Certificate and accepts for the purposes of this review the applicant’s claim he is in a genuine relationship with the sponsor of his Partner visa application, an Australian citizen. The Tribunal notes that the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications – such as his Partner visa application - that have been lodged.
On the evidence before it concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor in favour of cancelling the visa.
The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for some four months to be significant, despite taking into account the applicant’s submissions that he believed he was enrolled in a registered course of study at the higher education level during this period through the Diploma of Accounting course he undertook along with his obtaining of a CoE for a Bachelor-level degree at Polytechnic Institute Australia. The Tribunal notes from the applicant’s oral testimony that he arrived in Australia in 2013 and this is not his first Student visa. The Tribunal considers he was experienced with the requirements and obligations for a visa holder, even if he was utilising an external agent to assist with his study program who he claims was deficient in managing his affairs. The Tribunal notes the applicant had an obligation to keep himself informed and updated as to his immigration status which includes ensuring he is enrolled in a registered course of study appropriate to a 573 Higher Education visa holder. The Tribunal considers the applicant’s non-compliance with his visa conditions to be considerable. On the evidence before it the Tribunal weighs this factor in favour of cancelling the visa.
The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his Student visa be cancelled.
The Tribunal does accept that there will be a degree of hardship for both the applicant’s partner and the applicant himself in relation to their relationship should his visa be cancelled. The applicant said he registered his de facto relationship with his partner in 2018. On the evidence before it however, the Tribunal does not consider the hardship to be significant.
The applicant expressed concerns as to the impact upon his partner if he were to depart Australia. He said that she has anger management issues and doesn’t enjoy a good relationship with her parents. The applicant discussed with the Tribunal his partner’s mental and psychological health and discussed the incident a few years ago where she stabbed him in the hand, an incident that ultimately involved the NSW Police and the requirement for his partner to undergo counselling for her anger management at this time. The applicant stated that whilst she was no longer undergoing regular counselling, provides her with mental support. The applicant said she is not receiving treatment now and there is no evidence of a mental health plan. He said she nevertheless remained with anger issues.
The Tribunal notes that there is no corroborative evidence before it pertaining to the mental and psychological health of the applicant’s partner and her previous actions that attracted the attention of the NSW Police. Nevertheless for the purposes of this review, the Tribunal accepts the applicant’s claim as to his partner’s previous psychological and mental health challenges as well as the incident that involved the NSW Police. The Tribunal accepts the applicant provides his partner with a degree of stability and support. The Tribunal does not however consider that any hardship that may result in relation to the applicant’s partner cannot be mitigated. The applicant can remain in contact with his partner by a range of communication devices, allowing him to continue to provide her with emotional support. The applicant’s partner has her own family in Australia to provide her with support and as an Australian citizen has access to a range of mental health, counselling and psychological support if needed. The Tribunal does not consider on the evidence before it the applicant’s partner’s mental and psychological health is a reason not to cancel the applicant’s visa.
Similarly, in relation to the applicant’s relationship with his partner more broadly, the Tribunal considers the applicant can continue to provide his partner with emotional and financial support from off-shore as he sees fit. Furthermore, he and his partner and sponsor have a pending application for a Partner visa that has been before the Department for a year and a half that may result in the applicant and his partner gaining the ability to remain together in Australia as a result of their relationship. The Tribunal notes that the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia with the sponsor to finalise any outstanding matters and visa applications – such as his Partner visa application - that have been lodged. The Tribunal does not in the circumstances consider the cancellation of the applicant’s Student visa will cause a significant degree of hardship to the parties in regards to their relationship.

The Tribunal has considered the financial hardship that may result for them individually and collectively. In relation to his partner in Australia, the applicant stated he had been cohabitating with her for three years. The applicant said his partner studies and works in retail. He said that he and his partner share all their living expenses. The applicant said he was currently working with Uber and had previously worked in retail as well as IT whilst in Australia. In relation to the financial hardship which the applicant and his partner may each face, the Tribunal acknowledges that there will be a degree of hardship. The Tribunal considers that the hardship however can be mitigated. The applicant’s partner is an Australian citizen with full access to government financial support if required. She has a relationship with her parents who may be able to provide her with support if necessary. The Tribunal notes that the applicant also has the potential to provide his partner with support from offshore if deemed necessary. The Tribunal notes the applicant’s partner is currently in employment. The Tribunal furthermore considers that both parties may need to amend their spending due to physical separation, a situation the Tribunal is not convinced is an unusual or overly onerous situation. The Tribunal is not convinced that any potential financial hardship on the applicant or his partner is either significant or unreasonable.
The Tribunal notes the applicant has stated he has no other family members in Australia.
In relation to hardship that may be imposed on his own parents, the applicant said his father would be shattered for him not finishing his degree. He said he would bring shame to his father if he returned without a degree. He said his father was still under the apprehension he was studying. He said his three siblings who are all in Saudi Arabia would be disappointed in him. The Tribunal accepts that the applicant’s father and siblings offshore may be disappointed at the applicant’s failure to complete his studies. That is a reasonable expectation. The Tribunal does not however consider this to be a hardship that is unreasonable to either the applicant or his family members.
The applicant raised his status as a Bangladeshi citizen whose family is predominantly residing in Saudi Arabia. The applicant said that whilst he was born in Bangladesh, he had moved with his family to Saudi Arabia when aged around 10 or 11 years of age. The applicant raised issues he would have in returning to Saudi Arabia where his father and three brothers reside. The applicant said he would be unable to complete his studies in Saudi Arabia. He said Saudi Arabia didn’t give residency and he would have to apply for a visa to go to Saudi. He said Saudi Arabia did not have a student visa system. He said to return to Saudi Arabia he would again have to go back under his father’s visa or a visitor’s visa. The applicant said he came to Australia because Saudi Arabia were now pushing children over 18 years of age leave the country as they were not paying any taxation.
The Tribunal has a degree of sympathy for the applicant concerning this particular issue and notes the challenges facing those living and working in Saudi Arabia for many years but unable to acquire Saudi nationality. Nevertheless the Tribunal does not consider this hardship to be an issue not to cancel the applicant’s visa. The applicant stated he can return to Saudi Arabia on a visitor visa whilst the applicant also retains access to Bangladesh through his Bangladeshi nationality.
The applicant stated returning to Bangladesh would cause him hardship. The applicant said in the last twenty years he had only visited Bangladesh twice. The applicant said he visited Bangladesh and did not find the lifestyle agreeable. The Tribunal accepts there is a degree of hardship given the applicant’s immediate family is largely currently in Saudi Arabia. The Tribunal nevertheless does not consider the potential hardship expressed by the applicant to be onerous. The Tribunal found the applicant to be an extremely articulate individual who it considers has the ability to seek gainful employment and build a life in the nation of his citizenship. Furthermore, he retains an existing application for a Partner visa with his partner that will allow him to ultimately seek and acquire residency in Australia. The Tribunal has considered the potential hardship and whilst having some sympathy for the applicant, does not consider any hardship to be unfair or unreasonable.
The applicant said to the Tribunal that he is used to the lifestyle in Australia and there is flexibility in Australia with being able to work and study. He said in Bangladesh working and studying at the same time was seen as low status. The Tribunal accepts that the applicant enjoys the Australian lifestyle and would prefer to remain. The Tribunal does not however consider these as matters of hardship that might preclude the cancellation of his Student visa. The Tribunal does not consider the fact the applicant wishes to remain in Australia is a reason to not cancel his visa.
The applicant said that if he had a completed degree he could go to Saudi Arabia on his father’s business visa. The applicant said to go to Saudi he would otherwise be using a 90 day family visa to go to Saudi Arabia. The Tribunal notes the applicant’s assertions but finds that it is unconvinced that the applicant will complete a degree at the higher education level if he remains in Australia. He was granted a higher education student visa in 2014. He has not completed any course of study at the higher education level since that time. The Tribunal has considered his reasoning as to why he has not done so: his misunderstanding of the level of his studies in which he enrolled; his challenges with the administration of Holmes; his father’s illness; his concern with enrolling in a course whilst his visa was under review and potentially losing his fees – but it remains unconvinced he retains a genuine desire to study at the higher education degree level. The Tribunal therefore is not satisfied by the argument that denying him access to study for a degree after such a period of time represents a hardship imposed on the applicant.
On the evidence before it relating to the degree of hardship that might be caused to the applicant, the Tribunal weights this factor in favour of cancelling the visa.
The Tribunal has considered the circumstances in which the ground for cancellation arose.
At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 5 November 2016 and March 2017 when he obtained a CoE in a Bachelor of Business (Accounting) course that he subsequently abandoned without completing any studies. The ground for cancellation arose due to the failure of the applicant to remain in a registered course of study for a total of over 4 months.
The Tribunal noted from the decision record the applicant provided that the applicant enrolled in a Bachelor of Information Technology (Network Security) course that was cancelled for unsatisfactory course progress. Following this the applicant enrolled in a Bachelor of Professional Accounting at the Holmes Institute which was cancelled on 16 August 2016 for ‘student notified cessation of studies’. The Tribunal noted the delegate found that he had not been enrolled in a registered course of study since that time.
The applicant explained to the Tribunal he in fact enrolled in a Diploma of Accounting course just a few months later, in October 2016. He said he finished the Diploma in January 2017. He said he then discovered it was not a registered course of study at the Higher Education level as required by his visa; rather it was a Vocational Education level course. The applicant said he had been planning to start a new course in March 2017 but in that same month the Department informed him of his cancellation. The applicant said he told the Department he was going to enrol in a new course and gave them his new CoE. He stated the Department then asked him why he had not been enrolled in a registered course of study since November 2016. The applicant claimed he told them he had been involved in a Diploma of Accounting between October 2016 and January 2017 but subsequently had discovered it was not a Higher Education level registered course of study.
The Tribunal asked the applicant why he enrolled in a Vocational Education course rather than a Higher Education course as required by his Higher Education 573 visa. The applicant stated that in August 2016 he went overseas to see his unwell father who had suffered a heart attack and returned in September. During this period he said he was attempting to re-enrol in his higher education-level Bachelor of Professional Accounting course at the Holmes Institute which he had commenced in February 2016. He said he attempted to enrol via email whilst offshore in three subjects due to the challenges in the course but the Institute said he needed to enrol in 4 subjects and come and see the administration in person. The applicant said he explained that he was offshore. The applicant said the administration told him he would have to see them in person or his visa would be terminated. The applicant said he did not understand what the impact would be and he was stressed due to a range of circumstances. The applicant said when he returned to Australia he attempted to enrol again at the Holmes Institute but was told by his education provider that his course was cancelled and he could not re-enrol. The applicant said he then went to a student adviser in late September 2016 who informed him it was too late to enrol for that semester but he needed to find another course. The applicant said his adviser suggested he enrol in the Diploma of Accounting course in the interim. He stated that it was suggested that in that course he could learn the basics in accounting before recommencing his studies at a higher education level where he would have some credits towards a Bachelor’s degree.
The applicant in response to the Tribunal’s questions said he did not want to drop out of the Bachelor of Professional Accounting course, rather he simply wished to reduce his study load. His education provider, he claims, did not let him re-enrol with a lighter study load due to the fact he was overseas and he was unable to attend the office. He stated that by the time he returned to Australia and saw the Holmes Institute they said it was too late and his enrolment had been terminated. The applicant said he had completed one term at Holmes Institute at this time (commencing in February 2016) and had successfully passed two of the four subjects he had been enrolled in.
The applicant claims he subsequently enrolled in the Diploma of Accounting in late October 2016 and completed the course in January 2017, thinking he was studying an eligible higher education course but in reality was studying an ineligible vocational education level course.
The Tribunal has considered the applicant’s explanation but does not consider it mitigates his failure to maintain enrolment in a registered course of study.
In regards to the decision of the Holmes Institute to discontinue his studies, the Tribunal notes the applicant concedes that his provider did submit to him that he needed to make contact with them in person and discuss his desire to reduce his course load and his enrolment. The Tribunal noted from the applicant’s submission to the delegate that he claimed to have initially overlooked the emailed statement by the Holmes Institute that his enrolment had been terminated. He claimed to have discovered this after returning to Australia and attempting to reenrol in his Bachelor of Professional Accounting for the semester. The Tribunal notes that students have a responsibility to ensure they are meeting the enrolment and academic requirements of their course of study and their provider, even if they may consider them to be in some ways onerous. The Tribunal notes the applicant’s oral testimony that he missed this information due to the fact he was overseas and preoccupied caring for his father. Whilst the Tribunal sympathises with the applicant on this matter, it nevertheless remains, in the Tribunal’s opinion, encumbered on the applicant to meet the enrolment and academic conditions of his course of study. The Tribunal does not consider the requirements of the Holmes Institute and the applicant’s circumstances whilst offshore mitigate his failure to remain in contact with his provider and to meet their stated requirements pertaining to his enrolment.
The Tribunal accepts the applicant’s evidence that his father had suffered a heart attack and he was somewhat preoccupied with his father’s health. That is to be expected. The Tribunal nevertheless notes that the Holmes Institute made their requirements to the applicant as a student clear. The responsibility for the applicant being unaware that his enrolment had in fact been terminated belongs to the applicant. The applicant had been in Australia studying at the higher education level without success since 2014 (beyond his two units in first semester 2016) and his provider clearly had issues with his continued academic performance. On the evidence before it the Tribunal does not consider the actions of the Holmes Institute in ultimately cancelling the applicant’s enrolment was onerous or unfair upon the applicant.
In relation to the applicant’s decision to then enrol in a Diploma of Accounting between October 2016 and January 2017 in an attempt to meet his visa requirements, the Tribunal notes that the visa holder themselves has an obligation to meet the stated conditions attached to their visa. The applicant has blamed his then agent for the error in enrolling in a vocational education level course instead of a Higher Education course of study. The applicant said he did know that not holding an enrolment would impact upon his eligibility to hold a Student visa. He said that was why he enrolled in a Diploma of Accounting course during this period, only to discover it was not an eligible Higher education course. The applicant put some blame on his education adviser for the situation, stating he was unaware at the time he had enrolled in a course that was ineligible at the higher education level.
The Tribunal notes that the applicant is ultimately responsible for his own visa and the requirements and conditions attached. The Tribunal is of the opinion the applicant cannot essentially outsource all responsibility for such a significant error in his enrolment to a representative, even taking into account the quality of the service provided by his then education adviser. The applicant conceded he had received correspondence from the Department when granted a visa that outlined the conditions of the visa and the potential consequences of non-compliance. The applicant also stated he has previously held a Vocational Education 572 Student visa. The Tribunal reasonably considers the applicant, having held a Student visa since early 2013, has some experience of the Student visa system and the differences in study and course requirements between the 573 and 572 visas. The error in enrolling in a course of study that was not an eligible course of study remains, in the Tribunal’s view, the ultimate responsibility of the applicant.
The Tribunal notes that the applicant enrolled in a Bachelor of Business (Accounting) at Polytechnic Institute of Australia commencing in March 2017. He states he applied for this around February 2017, prior to receiving the NOICC from the Department. The applicant said he had had issues paying his tuition fees in March 2017 when he was due to pay his fees. The applicant raised with the Tribunal issues he had had with his partner and the impact that had had upon his enrolment. As discussed earlier in this decision, the applicant stated his partner had anger issues and in March 2017 he had been stabbed in the hand by her. He said that issues such as this compounded and meant he didn’t pay his fees any earlier than March 2017. The Tribunal notes that the applicant provided the delegate with a copy of his COE (D1, Folio. 12) which states he was due to commence the course on 27 March 2017. The applicant told the Tribunal he paid his initial fees but never commenced classes. The Tribunal has considered the applicant’s submissions. Whilst the Tribunal acknowledges the applicant made some effort to regularise his status by seeking an eligible higher education level course of study and paying some fees in a challenging period personally, the Tribunal notes that he did not proceed to in fact commence his studies. The applicant said after paying half the fees to the Polytechnic Institute of Australia for the Bachelor course at this time he had also been informed by the Department that his visa had been cancelled. He said he asked the Department what to do. He said he was told he could appeal through the Tribunal and it would take some time. The applicant said he did not start his course because he was concerned that he might be asked to depart Australia in the meantime.
The Tribunal considers the applicant’s failure to commence his studies in his Bachelor course is more symptomatic of a lack of desire to study at the higher education level rather than a concern he might be compelled to depart Australia before he had completed any studies. The Tribunal notes that the applicant confirmed that his Bridging visa he was granted after the delegate cancelled his Student visa has had study rights attached to it as well as work rights. The applicant – having already paid some of his fees – had the ability to at the very least commence his studies but made no effort to do so. Over two and a half years have now elapsed and the Tribunal is of the view the applicant has had ample opportunity to recommence his studies at the higher education level given his Bridging visa permitted him to undertake studies, notwithstanding his concerns in relation to his visa. The applicant has raised with the Tribunal the challenges he has had in the past with his partner but does not consider that they represent a plausible reason as to why he has failed to commit to his higher education studies for such a significant period of time. In the Tribunal’s opinion the applicant has illustrated little interest in recommencing his studies since the time of his cancellation in April 2017 and there is no evidence beyond the applicant’s oral testimony of any genuine efforts the applicant has made since his cancellation to recommit to higher education. The Tribunal furthermore notes that the applicant made very little progress with his higher education studies in the two and half years leading up to his visa cancellation in April 2017.
The applicant has not completed any courses of study at the higher education level. The applicant said if he had known the review process was going to take two and a half years he would have been far more likely to have studied during the period since the cancellation of his visa. The applicant stated that if his visa was not cancelled he could recommence his studies in February or March 2020 rather than later if he had to wait for his Partner visa application to be determined. The Tribunal remains on the evidence before it, nevertheless taking into account the applicant’s submissions concerning the various errors he claims has been made with his enrolment and the impact family issues have had upon him, unconvinced that the applicant has a genuine intention to study at the higher education level.
At the hearing the Tribunal put to the applicant his Provider Registration and International Student Management System (PRISMS) record of 5 July 2019 under s359AA. The Tribunal provided the applicant with a copy of the record. The Tribunal noted the record indicated that the applicant had not completed any higher education level courses and was not currently enrolled in a course of study at the higher education. The applicant elected to respond at the hearing via his oral testimony. The applicant stated that the circumstances of his non-enrolment were beyond his control. He said his father had been unwell. He said that the cancellation of his enrolment by his education provider whilst he was overseas was due to a misunderstanding. He said that if he had understood what the education provider was threatening then he would have certainly returned to Australia to see his provider and discuss his planned subject load with the student administration. He said this happened at a time he was also stressed with issues relating to his father and his partner. He also spoke about his student adviser who advised him to enrol in a Diploma course he believed met the conditions attached to his visa. The applicant said after his cancellation he didn’t continue his studies as he thought the risk in terms of the financial investment was too great given he could be compelled to depart Australia. The Tribunal has addressed these matters in its decision.

On the evidence before it relating to the circumstances in which the ground for cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.
The Tribunal has considered the past and present behaviour of the applicant towards the Department. The applicant said he met the other conditions attached to his visa. The Tribunal notes the applicant responded to the Department’s s.119 letter and gives this some positive weight. On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa.
The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. The applicant confirmed he had no dependents and no one else held a visa as a result of his visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.
The Tribunal has considered whether there are any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation of the applicant’s visa. There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.
The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia. The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date. The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged. As previously discussed in this decision record, given his claimed de facto relationship with his partner and his lodgement some 18 months ago of a Partner visa application, he may potentially remain in Australia on a Bridging Visa E whilst his application is assessed given Partner visa applications are exempt from the s48 bar. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Justin Owen
Senior 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.

[2020] AATA 139

30 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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