Terrones Tafur (Migration)

[2024] AATA 3967

Terrones Tafur (Migration) [2024] AATA 3967 (31 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Miluska Roxana Terrones Tafur
Mr Carlos Alberto  Bardalez Diaz
Miss Luciana Mercedes  Bardalez Terrones
Master Logan Bardalez Terrones
Master Bastian  Bardalez Terrones

REPRESENTATIVE:  Mrs Ameline Aulakh (MARN: 2117712)

CASE NUMBER:  2307411

HOME AFFAIRS REFERENCE(S):          BCC2022/3930763

MEMBER:Christine Kannis

DATE:31 August 2024

PLACE OF DECISION:  Perth

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

The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 31 August 2024 at 1:15pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – discretion to cancel visa – misconduct by agent and civil claim for compensation – childbirth and large medical expenses – mental health – no approach to providers or department – multiple cancellations – new enrolment after receiving department’s notice of intention – members of family unit husband and children – consequential cancellation of visas with no jurisdiction to review – oldest child’s schooling, and younger children born in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 140(1), 348, 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)

CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 May 2023 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the first named applicant (the applicant) failed to comply with a condition of her 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.

3. For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.

4. The applicant appeared before the Tribunal by MS Teams on  5 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the second and third named applicants, Mr Carlos Alberto Bardalez Diaz and Miss Luciana Mercedes Bardalez Terrones. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.

5. The applicants were represented in relation to the review. The representative did not attend the hearing.

6. 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

7. 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 (Cth) (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?

8. On 28 July 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

9. 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 full time registered course: 8202(2)(a)

   ·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).

10. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

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

12. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

13. The information from PRISMS shows that the applicant was not enrolled in a registered course from 20 January 2022 to 5 January 2023. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 20 January 2022 to 5 January 2023 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

15. 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, the witnesses and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.

16. On 21 December 2022, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 20 January 2022 and had therefore failed to comply with condition 8202(2)(a) of her visa.

    Response to NOICC

17. On 9 January 2023, the applicant responded to the NOICC and provided the following information:

    ·She is going to study a Diploma of Project Management and the course commenced on 19 December 2022 and will end on 17 December 2023.

    ·In 2018 she contacted Quack Study Agency to request a Student visa renewal. She paid the agent $13,213 for a visa plus medical insurance and tuition fees for her English course.

    ·In early April 2018, she attempted to make a health insurance claim and was advised she was not covered. She contacted the agent who told her he needed another $7,000 to activate her insurance. She requested the agent refund her insurance cover money so she could arrange for cover. Despite her repeated requests the agent did not refund the insurance cover money. She stopped contacting the agent when she found out he went to jail. She suffered from psychological issues because she was scammed of thousands of dollars and had a court case against the agent.

    ·Many students were affected and made complaints against the agent and due to the number of complaints and evidence, the agent was convicted and sentenced to community work.  In 2020 she won damages in a civil court but it was at a huge mental toll and she has not received any money from the agent who she understands went bankrupt.

    ·Between 2018 to 2022 she and her family encountered extenuating circumstances beyond her control that impacted their lives and her studies.

    ·Between 2018 to 2022 she was being scammed by her agent, she went to court, experienced a difficult pregnancy, took care of her infant children, all while trying to balance studying which was difficult. Throughout this period she did not make her education her priority which she should have done as a Student visa holder.    

    ·In June 2018 she miscarried a baby. The doctors told her stress had caused a lot of tension in her body. She had to pay between $700 and $800 for hospital charges.

    ·In 2019 she was pregnant with twins. She and her family suffered emotional distress when her twins were born prematurely and passed away shortly after birth.

    ·Her next pregnancy was problematic however these twins were born in 2020. She and the twins had health issues and she had significant financial stress due to large medical expenses including $12,000 for hospital care. She suffered emotional stress when she realised her Overseas Student Health Cover (single cover) did not cover her and the twins’ medical expenses. When she was discharged from hospital she owed $73,000. She went into depression, experienced trauma and significant stress and was not able to produce milk for the twins. After the twins’ birth a friend raised $15,000 for her family via GoFundMe which enabled her to obtain family cover insurance and pay some medical debts.

    ·At the time she did not know she had the option to apply for a leave of absence from her institution and the consequences of failing to maintain her enrolment.

    ·Due to the high tuition fees she was not able to seek legal advice regarding her visa conditions and the consequences and seriousness of her missed studies. Furthermore she was not able to get support for her mental well-being.

    ·It has been some time since her hardships occurred and she is in a better state mentally to study. Her hardships between 2018 to 2022 have passed.

    ·Her twins are now more than one year old and they are in good health.

18. At the time of responding to the NOICC the applicant provided the following documents:

    • CoE for Diploma of Project Management created on 6 January 2023;
    • Neonatal discharge summaries dated 12 June 2021 for the applicant’s twins;
    • Applicant’s discharge summary dated 9 June 2021;
    • Various hospital tax invoices dated in 2021;
    • Letter dated 20 June 2022 from DVA Collections requesting payment of overdue accounts in relation to Westmead hospital ;
    • Copy of Quack Study Sydney invoice dated 13 December 2017 for $13,213.00;
    • Nib OSHC Confirmation of Health Cover (family);
    • Various documents evidencing the applicant’s claim in the Division Small Claims in the Local Court including her witness statement in support of her claim; and
    • Copy of Local Courts of New South Wales order dated 26 February 2020 ordering the applicant’s agent to pay her $9,883.00.

    Evidence provided at hearing

19. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of her enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from her PRISMS enrolment record, she was enrolled in the following courses of study:

    a.She was enrolled in various English language courses in 2018, 2019 and 2020, all of which she finished except a General English course which was cancelled on 22 August 2019 due to Non-commencement of studies;

    b.She was enrolled in a Diploma of Project Management which was cancelled on 22 January 2022 due to Non-payment of fees;

    c.She was enrolled in an Advanced Diploma of Project Management which was cancelled on 22 January 2022 due to Non-payment of fees; and

    d.She was enrolled in a Diploma of Project Management which was cancelled.

20. The Tribunal explained to the applicant that this information was relevant because it indicates that from 20 January 2022 to 5 January 2023 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering her purpose for remaining in Australia.

21. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to her PRISMS enrolment record. The applicant initially said she finished the Diploma of Project Management course on 18 December 2023. The Tribunal noted that the course was due to end on 17 December 2023 however her enrolment in the course had been cancelled. The Tribunal put to the applicant that PRISMS shows her enrolment in the Diploma of Project Management  course ending on 18 December 2023 had been cancelled and she then agreed that she had not finished the course and that her PRISMS enrolment record was correct.

22. The Tribunal asked the applicant about her circumstances between 2018 to 2022. In response she said she stopped contacting her former migration agent in 2018 because he was scamming her and other clients. She said he was jailed in 2018 but released on bail and subsequently received a community work sentence.

23. The applicant said in February 2020 she was awarded compensation in a civil claim against her former migration agent. In response to the Tribunal asking whether she had attempted to recover any of the compensation, she said she has not and said the agent told her he was bankrupt. In response to the Tribunal asking whether she had confirmed that he had declared bankruptcy, she said she had not investigated whether his claim was true.

24. The applicant told the Tribunal that in October 2019, her first set of twins passed away shortly after birth. Her second set of twins were born on 6 June 2021.The Tribunal referred the applicant to the statement in the NOICC response that she went into depression, experienced trauma and significant stress after the birth of the second twins and asked her whether she sought medical treatment for her mental health at any time. In response she said she did not seek medical assistance and she relied on the support of her friends. She also cited the COVID-19 pandemic and it not being financially viable as reasons for not seeking medical treatment.

25. The Tribunal asked the applicant about the statement in the NOICC response that during the period 2018 to 2022, she admits not making her education her priority which she should have done as a Student visa holder.  In response she said she lost her twins in 2019 and didn’t feel up to doing much emotionally and she was not well. She said in 2021 she was pregnant and, given her history, her pregnancy was closely monitored. The twins were born in June 2021 and she said there wasn’t much work around for her husband because of the pandemic.

26. The Tribunal asked the applicant about the reason for cancellation of her enrolment on 22 January 2022 in a Diploma of Project Management and an Advanced Diploma of Project Management for non-payment of fees. In response the applicant said the family were in a difficult situation because she couldn’t work as she was looking after the babies, her husband had limited work and the cost of living had increased. Noting that when the applicant applied for the Student visa she would have had to show that she had the funds to support herself throughout her stay in Australia, the Tribunal asked her the reason she did not depart Australia and return when her financial circumstances improved. In response she said she did not know why she did not take this step.

27. The Tribunal asked the applicant when she last attended classes prior to cancellation of her enrolment on 20 January 2022. In response she said she last attended classes in April or May 2021. The Tribunal asked her whether she requested a deferment of her study from her education provider in 2021. She said she spoke to an agent in 2021 and was advised that her study could not be postponed.

28. Noting that she ceased attending classes in April or May 2021 and her enrolment was cancelled on 20 January 2022, the Tribunal asked the applicant how she spent her time and in particular how she spent 2022 during which she was not enrolled in any course after 20 January 2022. In response the applicant said she stayed home and looked after her babies.

29. The Tribunal put to the applicant that she would have known from 20 January 2022 to 5 January 2023 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. In response, the applicant conceded that she was aware of her non-compliance. The Tribunal asked her whether she contacted the Department about her visa status. In response she said she did not know that she was required to notify the Department if she ceased study. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.

30. In response to the Tribunal asking the main reasons she was not enrolled from 20 January 2022 to receipt of the NOICC, the applicant said the reason was financial. Noting that she was able to obtain a CoE created on 6 January 2023, the Tribunal asked her the reason she was able to enrol 16 days after receipt of the NOICC. She said she did not know.

31. When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she came to Australia to study. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said her 11 year old daughter (the third named applicant) wants to finish her education in Australia.

32. Mr Diaz (the second named applicant) told the Tribunal that the applicant’s non-compliance was not deliberate. He said his ability to work was limited by the 20 hours per week restriction on Student visa holders.  Mr Diaz said they want to stay in Australia so their daughter (the third named applicant) can finish her study.

33. Miss Terrones (the third named applicant) provided evidence to the Tribunal. Prior to making an oath and giving evidence, the Tribunal questioned Miss Terrones about the meaning of right and wrong and telling the truth and lies. The Tribunal was satisfied that Miss Terrones understood the meaning of telling the truth.

34. Miss Terrones told the Tribunal that she wants to keep studying in Australia and wants to  have a good future. She said her friends are here and she will suffer if she has to depart Australia because she has been here since she was 2 years old. She said she will encounter language difficulties if she has to depart Australia.

35. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

36. The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of nearly 12 months prior to the issuing of the NOICC.  She told the Tribunal she has not attended classes since April or May 2021. The Tribunal finds the applicant’s breach of condition 8202 to be significant because  she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

1. There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3] 

   [3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].

2. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response she said her 11 year old daughter wants to complete her schooling here. She did not say she wants to resume her own study in Australia.  The Tribunal accepts that the applicant wants her daughter to complete her education here but does not consider this constitutes a compelling need for her to remain in Australia.

3. The applicant’s non-engagement in the study for which her visa was granted for an extended period of nearly 12 months, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.

   The extent of compliance with visa conditions

4. The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study from 20 January 2022 to 5 January 2023. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

5. The applicant’s non-compliance for a period of nearly 12 months from cancellation of her enrolment until the issuing of the NOICC weighs in favour of visa cancellation.

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

6. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to the applicant and her family because they want the third named applicant to complete her education in Australia.

7. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

   Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

8. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for nearly 12 months prior to the issuing of the NOICC. In her response to the NOICC she said during the period 2018 to 2022 she was being scammed by her agent and went to court, experienced a difficult pregnancy and took care of her infant children, all while trying to balance studying which was difficult.  

9. Documentary evidence was provided to demonstrate that the applicant obtained an order for compensation on 26 February 2020. The scamming by her former migration agent and obtaining an order for compensation was finalised by 26 February 2020 which was nearly two years prior to cancellation of her CoE on 20 January 2022.  Despite claiming  financial difficulties, the applicant told the Tribunal that she has not attempted to recover the compensation because the agent said he was bankrupt and she did not follow up whether this was the case. Given the timing of the agent’s actions and compensation order, the Tribunal is not satisfied that these matters precluded the applicant from undertaking the study for which her visa was granted.

10. The Tribunal accepts the applicant’s evidence regarding the passing of her twins in October 2019 which was 2 years 4 months prior to the cancellation of her enrolment on 20 January 2022. The Tribunal accepts that the applicant gave birth to twins on 6 June 2021 and that she ceased attending classes in April or May 2021. In these circumstances it may have been appropriate to request a deferment from her education provider. She said she spoke to a migration agent about it but did not speak to her education provider. In the NOICC response the applicant said she suffered depression, experienced trauma and significant stress after the birth of the twins. There is no medical evidence before the Tribunal regarding the applicant’s mental health and in the absence of such evidence, the Tribunal has no evidence of the nature or severity of the applicant’s claimed mental health conditions or whether they precluded study.

11. When asked the main reasons for ceasing to be enrolled, the applicant told the Tribunal that she was unable to maintain the required enrolment due to financial difficulties. As noted it is a requirement for the grant of a Student visa that visa holders can financially support themselves for travel, living costs and tuition fees during the stay in Australia. If a visa holder is experiencing financial difficulties it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions. The Tribunal accepts that the COVID-19 pandemic may have adversely impacted on the applicant’s husband employment in 2020 and 2021. The applicant was unable to provide a reason for not departing Australia in 2022 after her enrolment was cancelled on 20 January 2022.

12. The applicant remained in Australia and did not attend classes from April or May 2021 and was not enrolled in any course from 20 January 2022 until she obtained a CoE following receipt of the NOICC. Therefore she had a significant period of time to rectify her enrolment and failed to do so until contacted by the Department. The applicant did not notify the Department when she was no longer enrolled in a course and as noted, the Tribunal considers it was the applicant’s responsibility to ensure she understood the conditions attached to her visa and to ensure that she complied with those conditions.

13. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 20 January 2022. She referred to being scammed by a migration agent in 2018 and her twins passing away in 2019.  PRISMS shows she was able to finish English language courses in 2018, 2019 and 2020. Accordingly, the Tribunal finds that these matters did not preclude the applicant from enrolment and study. The applicant referred to suffering mental health conditions in 2021 however as noted, no medical evidence was provided and based on the evidence before it, the Tribunal is unable to make any findings regarding the claimed mental health conditions. The applicant told the Tribunal that she ceased attending classes in April or May 2021, just prior to the birth of her twins and said she stayed home throughout 2022 and looked after them. She did not seek a deferment from her education provide and did not contact the Department to rectify her visa status. The applicant did not provide satisfactory reasons for failing to seek a deferment or contacting the Department.  When asked the reasons for the non-compliance, the applicant gave one reason only to the Tribunal at the hearing, that of financial difficulties. As noted, it is reasonable to expect the visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.

14. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

15. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

16. The applicant’s partner and three children are secondary visa holders. Cancellation of the applicant’s visa means they will be subject to consequential visa cancellation of their visas, which were granted to them as members of the family unit of the applicant.

17. The Tribunal accepts that there would be consequential cancellations in this case.  The Tribunal gives this factor some weight against exercising its discretion to cancel the visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

18. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

19. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

20. The applicant is a citizen of Peru and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. The Tribunal considers this factor neutral in the exercise of its discretion.

21. The Tribunal has considered Article 3 of the Convention on the Rights of the Child (Convention) (CRC) which requires that in all actions involving children, the best interests of the child shall be the primary consideration. The Tribunal has also considered the family unity principles under International Covenant on Civil and Political Rights (ICCPR). In this case, the applicant has three children. The children are aged 11 years, 3 years and 3 years with the twins having been born in Australia. If the applicant’s visa is cancelled the family will all depart Australia together. The Tribunal accepts that the third named applicant has received all her education in Australia however notes she is only 11 years of age and any adverse impact on her education by relocating, as many families do, is likely to be limited. There is no evidence before the Tribunal suggesting that the third-named applicant could not relocate with her parents if the applicant’s visa were to be cancelled, or would in doing so suffer any particular detriment, as to her education or otherwise. The twins are only 3 years old and no evidence was provided that they would suffer any hardship if the applicant’s visa were cancelled. The Tribunal considered whether to cancel or not cancel the applicant’s visa would be in the children’s best interests. The Tribunal, on balance, considers that any cancellation outcome would not result in a breach of Australia’s international obligations under the CRC or ICCPR.

22. The Tribunal gives this consideration no weight against cancellation.

    Any other relevant matters

23. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

24. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation, that there is nothing adverse known about the applicant’s past and present conduct towards the Department and that there will be consequential cancellations in this case.

25. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

26. The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicants.

    Christine Kannis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.