Thamarath (Migration) - [2019] AATA 1250

Thamarath (Migration) [2019] AATA 1250 (4 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Mohamed Hisham Thamarath
CASE NUMBER:  1805474
HOME AFFAIRS REFERENCE(S):           BCC2017/4262404
MEMBERS:Michael Ison (Presiding)

Peter Haag
DATE:4 April 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 04 April 2019 at 5:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-enrolment – father’s financial difficulties outside applicant’s reasonable control – failure to take positive steps in rectifying the breach – 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 22 February 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant failed to maintain enrolment in a registered course in breach of condition 8202(2) of Schedule 8 to the Migration Regulations 1994 (the Regulations). 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 is a 26 year old Indian national who arrived in Australia on 5 March 2015 as a 22 year old who held a Student (Subclass 573) visa to study a Master of Business Administration (MBA).
The applicant appeared before the Tribunal on 29 March 2019 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
The applicant provided the Tribunal with a copy of the delegate’s decision dated 22 February 2018. That decision reproduced in full the applicant’s response on 25 January 2018 to a Notice of Intention to Consider Cancellation of a Visa (NOICC) dated 18 January 2018. The evening before the hearing the applicant’s representative submitted a six page submission[1] with the following attachments:
[1] Tribunal file, folios 36 to 39.
·Form 956 being an application for study rights while holding a Bridging E (Subclass 050) visa dated 17 July 2018;[2]
[2] Tribunal file, folios 43 and 44.
·Two-page handwritten personal statement from the applicant in support of his application for readmission to Deakin University dated 16 January 2018;[3]
·Bank statement of account for Saleena Aboobacker for the period 25 March 2019 to 28 March 2019 showing a balance of 1,202,000 Indian rupees;[4]
·Two receipts from Deakin University for AU$2,449.60 on 28 November 2017 and AU$6,810 on 30 November 2017;[5]
·Application for readmission to Deakin University dated 16 January 2018;[6]
·Email communications between the applicant and Deakin University including an email from Deakin University dated 8 September 2016 confirming the applicant’s application for intermission for Trimester Two, 2016 has been approved;[7]
·Five page extract from Wikipedia titled ‘Saudization’ which included the highlighted passage stating “… in 2017, updates to the Saudization percentages were announced, differing the number of Saudi nationals required depending on industry and company size.”;[8]
·Property valuation report dated 20 March 2019 valuing a property in the Perinthalmanna village in India;[9]
·Academic transcript for the applicant from Deakin University dated 4 January 2018 confirming the applicant has attempted 12 units of his MBA and has passed nine units and not passed three units. The certificate confirms that the applicant’s course enrolment was intermitted from 25 August 2016 to 31 October 2016 and the applicant’s course enrolment was discontinued on 31 March 2017;[10]
·Affidavit of Muhammed Aboobacker dated 25 January 2018 confirming he was unable to financially support his son’s studies in Australia for a period but will support him financially in future;[11] and
·Overseas student confirmation of enrolment from Deakin University printed on 8 September 2016 for the applicant’s enrolment in a Master of Business Administration (International) course with a course commencement date of 1 November 2016, a course end date of 30 November 2017 and a tuition fee of AU$33,000.[12]
[3] Tribunal file, folio 42.
[4] Tribunal file, folio 41.
[5] Tribunal file, folio 40.
[6] Tribunal file, folios 34 and 35.
[7] Tribunal file, folio 32 and 33.
[8] Tribunal file, folios 29 to 31.
[9] Tribunal file, folios 27 and 28.
[10] Tribunal file, folio 26.
[11] Tribunal file, folio 25.
[12] Tribunal file, folio 24.
The Tribunal has had regard to the oral evidence of the applicant and all information and documents submitted by the applicant or on his behalf.
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
Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
s.116(1)(b) - non-compliance with conditions
A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 attached to the applicant’s visa. This condition requires the visa holder to be enrolled in a registered course.
The delegate, in their decision letter, quoted from the applicant’s response to the NOICC and found there was a ground for a cancellation of the applicant’s Student (Subclass 500) visa:
My father was running a business in Saudi Arabia and he faced a huge loss due to an unexpected change in commercial rules. This happened during the period of my trimester 1 of 2017. This loss in business put my family into a bigger trouble and we faced a serious financial hardship. As a result, I was unable to make the payment of my trimester 1, 2017. I requested my university authority for the extension of the payment date, but the situation was beyond my control for which I could not pay the fee within deadline. As a result, my COE got cancelled on 23 May, 2017.
The applicant confirmed to the Tribunal that he has not been enrolled in a registered course of study since his enrolment in the MBA at Deakin University was cancelled on 23 May 2017.
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 the visa should be cancelled.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
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
The applicant confirmed to the Tribunal that the purpose of his travel to and stay in Australia was to study at the higher education level.
The Tribunal noted the delegate’s finding that the applicant’s purpose for staying in Australia ended on 23 May 2017 when his enrolment in the MBA was cancelled. The Tribunal asked the applicant whether he has a compelling need to remain in Australia. The applicant told the Tribunal that he has completed half of his MBA course and feels stuck in Australia as he just wants to complete the last seven units of his course and return to India.
The Tribunal does not consider the applicant’s desire to complete his MBA to be a compelling need for him to remain in Australia. The applicant has been in Australia for over four years and in that time the evidence he has provided to the Tribunal indicates he has completed just over one year’s study. As will become evident later in these reasons there have been intervening events outside of the applicant’s reasonable control that have contributed to his poor academic progress, but the applicant’s own actions or at times inaction have also contributed to that outcome.
The Tribunal does not accept the applicant’s present circumstances and desire to complete his MBA amount to a compelling need for him to remain in Australia. This consideration supports the cancellation of the applicant’s visa and the Tribunal gives it some weight.
The extent of compliance with visa conditions
The Tribunal discussed with the applicant that the delegate found that the applicant did not comply with condition 8202 of his Student visa when he failed to maintain enrolment in a full-time registered course of study. At the time of the delegate’s decision the delegate found the applicant had not been enrolled for over eight months and considered this a reasonable period of time for the applicant to take action to remedy the situation or make alternative plans to depart Australia.
The applicant told the Tribunal that when his father experienced financial difficulties he continued to attend classes in the hope that he would be able to pay his course fees prior to the exams being conducted. Despite hoping and expecting on a daily basis that his father may be able to resolve his financial difficulties the applicant told the Tribunal that ultimately he was unable to pay his course fees and could not sit his exams, leading to his enrolment being cancelled in May 2017.
The applicant has not been able to re-enrol in his course since it was cancelled nearly two years ago, but has maintained residence in Australia during this time. The applicant told the Tribunal he paid all arrears of course fees by 30 November 2017 and then sought re-admission on 16 January 2018, but received the NOICC on 18 January 2018 which, to his credit, he informed the University about. The applicant told the Tribunal he believes his re-admission was refused because of the doubt cast over his future by the NOICC.
The Tribunal finds that at the time of the delegate’s decision the applicant had committed a significant and ongoing breach of condition 8202(2) that attached to his Student visa. The Tribunal acknowledges that this breach was initially caused by factors that were not reasonably within the applicant’s control, but the Tribunal notes it took just over six weeks after paying his arrears of fees for the applicant to seek re-admission, a matter that was within the applicant’s control. If the applicant had promptly sought re-admission then the issuing of the NOICC may not have been a factor at all, depending on how long it took the university to process the application.
The applicant explained to the Tribunal the delay reflected his lack of knowledge of Australia’s migration laws, as he thought upon payment of his arrears of course fees his visa would be reinstated. The Tribunal gives this explanation limited weight as the applicant had over six months between the cancellation of his enrolment and the payment of his arrears of course fees to speak to Deakin University or the Department or obtain independent advice to understand what would be required of him. The applicant told the Tribunal this was a “mistake” for which he accepts responsibility and has no-one else to blame.
If the applicant had only a narrow window of opportunity to resolve his situation the Tribunal may have been able to give the applicant’s evidence of having made a mistake greater weight. But in the applicant’s circumstances of being in Australia solely to study and given his evidence of the importance to both him and his family in India of the applicant completing his study in Australia, his failure to seek clarification or advice about his future study in Australia for over six months in the Tribunal’s view adds to the nature and seriousness of the applicant’s breach of condition 8202(2) that attached to his visa.
The applicant told the Tribunal he has not breached any other condition of his Student visa and he has not received any correspondence from the Department raising any concerns about potential breaches of his visa. In the absence of evidence to the contrary, the Tribunal accepts the applicant’s evidence in this regard.
Overall, the Tribunal finds that this consideration supports the cancellation of the applicant’s visa and in the applicant’s circumstances the Tribunal gives this considerable weight.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members
The applicant told the Tribunal that he was 22 when he arrived in Australia and expected to complete his studies here by the age of 24 and then go home and find a job in India. The applicant also told the Tribunal that at 26 years of age without his Australian MBA qualification it will be impossible for him to find a job in India.
In his written submission to the Tribunal, the applicant’s representative submitted:
Directly: It will cause great phycological (sic) and financial problems, and stress to his family members who has high hopes on him. After coming to Australia, he has already completed 9 out of 16 core units. His parents have invested great sum of money for him to secure a good education overseas. There hard money what they have spent on his Australian study and living will be wasted.
Secondly: If he will return, he will not be able to continue his studies. As there is lot of competition to get admission. Moreover, he was not able to secure admission when he was young and achieved High distinction. He made enquiries and he had been told that it will be hard for him to study as mature age student.
Indirectly: Given that he may not be able to secure employment or start a business that he might possibly achieve if he had qualifications. He will not be able to credit or benefits of education in India. As the education system in India is quite different from Australia and part-studies may not be recognized. Even though they recognise the completed Australian Qualifications, there is no credit or RPL’s are given for the unfinished studies. (sic) [13]
[13] Tribunal file, folios 36 to 39 at folio 37.
The applicant told the Tribunal his father is 53 years of age and he has three younger sisters such that it will be his responsibility to care for his parents in their old age.
In his response to the NOICC on 25 January 2018, quoted in the delegate’s decision, the applicant explained the effect the cancellation of his enrolment had on him:
As a human being, it was really tough for me to keep calm and I fell into a great depression. It affected my thoughts and I became very negative about my future. I used to have panic attacks and lack of sleep which my health was getting worse. … As we were borrowing money from someone else so, a great deal of time has passed waiting for his response and I was suffering from anxiety disorder. I was feeling like my strength and confidence has gone. (sic) [14]
[14] Department file, folio 24.
The Tribunal discussed this statement with the applicant. The applicant told the Tribunal he did not seek medical help at the time and does not have any documents or reports that support his assertions that he was depressed or suffering from an anxiety disorder. Due to a lack of evidence the Tribunal makes no finding in relation to the degree of psychological hardship the cancellation of the applicant’s enrolment and subsequently of his Student visa has had on the applicant.
In his written submission to the Tribunal, the applicant’s representative also submitted:
24. [The applicant] paid his tuition fees to university on 28^th November 2017 and requested to University Authorities for readmission.
25. The University told him to submit all the documents regarding readmission application, personal statement, evidence of payment and he started preparing all these documents.
26. When he was almost done with these documents, university got closed for Christmas and advised him to process his application after the holidays.
27. Finally, he submitted all required documents of readmission on 16 January 2018.
28. Within two days, on 18^th January 2018, after submitting all the documents to University for reenrollment, he received Notice of Intension to consider cancellation of student visa. (sic) [15]
[15] Tribunal file, folios 36 to 39 at folio 36.
The Tribunal accepts that the applicant will suffer significant financial and emotional hardship from the ongoing cancellation of his visa. However, the weight the Tribunal gives to this hardship is ameliorated by the applicant’s own failure to proactively and positively manage his affairs in Australia, as noted in the previous consideration. Had the applicant contacted the University or the Department in the over six months he was waiting for further funds to arrive, as the Tribunal would reasonably expect someone who had and has the applicant’s stated motivation to study in Australia to do, then such actions may have maximised the applicant’s chances of receiving a positive outcome from either or both his education provider and the delegate.
The applicant told the Tribunal that his parents have paid AU$50,000 for his course fees which he said is over 20 Lakhs in Indian money and is a huge amount of money for his parents and family. The Tribunal notes that the applicant’s confirmation of enrolment dated 8 September 2016 states his total course fees as AU$33,000, but this appears to be for the remainder of the applicant’s studies (being 12 months).[16]
[16] Tribunal file, folio 24.
The applicant also told the Tribunal his father and family are in a much better position now financially than they were at the time his enrolment was cancelled and he is confident that his family will be able to support him financially until he completes his study in Australia. The applicant’s evidence was that the loan his father obtained from friends in India has now been repaid. This lessens the financial hardship the applicant’s parents may have suffered had the loan the applicant’s father arranged remained outstanding.
The Tribunal accepts that the applicant’s family will suffer financial hardship in the sense that they may feel the money spent on their son’s overseas education has not resulted in their desired outcome of him receiving an Australian qualification and therefore is ‘wasted’. The Tribunal also accepts the applicant’s parents may also feel that this will affect their future adversely as their only son is less well placed to care for them financially into their old age. The Tribunal accepts that these circumstances may cause considerable emotional hardship to the applicant’s parents.
The Tribunal finds that the financial and emotional hardship that will be caused to the applicant’s parents weighs against the cancellation of his Student visa and the Tribunal gives this some weight.
The Tribunal finds that the financial and emotional hardship the applicant will suffer, whilst significant, largely arises from the applicant’s failure to take reasonable steps to address the breach of a condition of his visa for over six months. Therefore, whilst this significant hardship weighs against the cancellation of the applicant’s Student visa, the weight the Tribunal gives this consideration is significantly but not completely ameliorated by the applicant’s own actions or inaction that have contributed to the cancellation of his Student visa and the hardship he has suffered.
The circumstances in which the ground for cancellation arose

The Tribunal was assisted in understanding the circumstances of the cancellation of the applicant’s Student visa through the written submissions of the applicant and his representative. In discussing these with the applicant the Tribunal accepts the evidence of those circumstances which it summarises as follows:
·The applicant completed his secondary schooling in India to year 12 level in 2011;
·He completed a Bachelor of Business Administration in India in 2014;
·He sought, but did not gain, admission into a “top end business school” in India;
·After speaking to education agents in India and undertaking his own research the applicant decided to study a Master of Business Administration at Deakin University, subsequently applied and was granted admission, arriving in Australia in March 2015;
·The applicant commenced his studies successfully, returning to India in July 2016 to visit family and friends before returning to Australia in August 2016;
·He then subsequently injured his back playing sport, providing a medical certificate dated 24 August 2016 that stated the applicant “will be unfit for University (study) from 24/08/2016 to 24/10/2016 inclusive” as he “needs regular treatment, physiotherapy, chiropractic, rest”;[17]
[17] Tribunal file, folio 35a.
·The applicant sought and was granted “intermission” from his studies by Deakin University as a result of his injury;[18]
[18] Tribunal file, folios 32 and 33.
·The applicant recommenced his studies in November 2016;
·The applicant had attempted 12 of 16 units needed to complete his course. As noted above he had passed nine units and failed three units, providing an academic transcript confirming this to the Tribunal;[19]
[19] Tribunal file, folio 26.
·The applicant commenced Trimester 6 of his studies in March 2017 and was required to pay his semester fees within one month of commencement of study;
·“Meanwhile, his father faced a huge loss in business in Saudi Arabia due to the sudden changes in Commercial Laws.”[20] As a result, the applicant’s father was unable to transfer money to the applicant to pay his course fees. The applicant provided an affidavit from his father confirming these circumstances and averring that he will be able to pay his son’s course fees for the remainder of his course;[21]
·The applicant sought and obtained an extension of time to pay his course fees from the University;
·The applicant was unable to pay his course fees within the extended time or prior to the semester exams occurring and as a result the University cancelled his enrolment on 23 May 2017;
·The applicant paid his arrears of fees on 28 and 30 November 2017, providing receipts to the Tribunal in support of this evidence;[22]
·The applicant sought readmission to the University on 16 January 2018[23] and provided the Tribunal with a copy of his statement in support of that application in which he stated “… now everything is solved…” and “… me and my family is very confident that I can complete the course successfully.” (sic)[24] In support of this contention the applicant provided a property valuation showing the value of land holdings in India held by his family;[25]
·He received the NOICC on 18 January 2018;[26]
·The applicant responded to the NOICC on 25 January 2018;[27]
·On 15 February 2018 the University confirmed to the Department that it had refused the applicant’s application for readmission;[28] and
·On 22 February 2018 the delegate cancelled the applicant’s Student visa.[29]
[20] Tribunal file, folios 36 to 39 at folio 38.
[21] Tribunal file, folio 25.
[22] Tribunal file, folio 40.
[23] Tribunal file, folios 34 and 35.
[24] Applicant's statement to Deakin University dated 16 January 2018, Tribunal file, folio 42.
[25] Tribunal file, folios 27 and 28.
[26] Department file, folios 8 to 10.
[27] Department file, folios 15 to 25.
[28] Delegate’s decision, Tribunal file, folios 1 to 5 at folio 3 (back).
[29] Delegate’s decision, Tribunal file, folios 1 to 5.
The Tribunal recognises that the initial cause of the eventual cancellation of the applicant’s Student visa, being his father’s financial difficulties in 2017, was not within the applicant’s reasonable control. The Tribunal also recognises that the applicant now feels that those financial difficulties are in the past and with only seven of 16 units to complete his course that he will be able to do so within a year.
The Tribunal does not accept that all of the key circumstances that contributed to the cancellation of the applicant’s Student visa were outside of his reasonable control. The Tribunal accepts the applicant’s evidence, including his father’s affidavit, of his father’s financial difficulties and that these difficulties led to the non-payment of his course fees. The Tribunal also accepts that the applicant sought and was granted an extension of time by the University to pay his course fees.
The Tribunal discussed with the applicant what he did in the period between his enrolment being cancelled on 23 May 2017 and the payment of his arrears of fees on 28 and 30 November 2017. The applicant told the Tribunal he was doing nothing but going for walks and reading books. He said he was really depressed at the time and worried about his future. The Tribunal discussed with the applicant why he remained in Australia when he could not study, particularly for the nine months between the cancellation of his enrolment and the cancellation of his visa. The Tribunal suggested to the applicant that it would have been less expensive for his family to support him in India rather than in Australia during this time. The applicant responded that friends were helping him pay his rent but his father was paying 80% of his upkeep in Australia.
As noted above, the applicant told the Tribunal that during this time he was hopeful each day that his father would forward him money to enable him to pay his course fees. He said he thought that if he paid his fees his enrolment would be reinstated. The applicant told the Tribunal the fact that this was not the case was a mistake and a matter of poor judgement on his part for which he does not blame anyone else. The Tribunal accepts the applicant’s evidence in this regard.
The applicant’s representative also submitted during the hearing that the applicant’s genuineness as a student is reflected in his commitment to continue his studies at Deakin University even though he could have sought enrolment at a much cheaper alternative, such as a private education provider. The Tribunal accepts there were cheaper alternatives available to the applicant and his commitment to re-enrolling at Deakin University supports his genuineness as a student and was a factor in the circumstances in which the ground for cancellation of the applicant’s visa arose.
The Tribunal finds the circumstances in which the cancellation of the applicant’s Student visa arose weigh in favour of the cancellation of the applicant’s visa because the applicant has not provided any significant evidence of taking positive steps to rectify the breach of the condition of his visa. The applicant did seek and obtain additional time to pay his course fees, but this occurred before the breach arose after the cancellation of his enrolment on 23 May 2017. The Tribunal notes that the applicant was familiar with dealing with his University about enrolment issues. As much is confirmed by the applicant successfully obtaining a two month deferral of his studies due to the back injury he suffered in August 2016.
The applicant chose to place his future as a student in Australia at risk by hoping his father would be able to pay his course fees. But once his course was cancelled the applicant chose to continue to rely on this hope on his own assumption he would be able to re-enrol. The applicant did not tell the Tribunal of any steps he took between the cancellation of his enrolment and the cancellation of his visa, other than relying on his father, to address the breach of the condition of his visa.
The Tribunal would expect a genuine student in the applicant’s circumstances, with his own evidence of he and his family having so much at stake, to be considerably more proactive about their status as an international student in Australia. The applicant did not provide the Tribunal with evidence of having spoken to his education provider about its re-enrolment requirements or of seeking a deferral of studies due to financial hardship or of seeking legal or migration agent advice or speaking to the Department about his situation. The Tribunal accepts this would have been a stressful time for the applicant, but has found his evidence of being depressed and having an anxiety disorder to be unsupported by medical evidence. This indicates to the Tribunal that the applicant was not incapacitated from taking any of the actions the Tribunal would expect a genuine student to have taken.
In addition, once the applicant’s visa was cancelled on 22 February 2018 and he was granted a Bridging E visa in March 2018, the applicant’s evidence is he did seek legal advice about his situation. The Tribunal also notes that the applicant applied to have the ‘no work’ condition of his Bridging E visa set aside in July 2018 and that this application was filed by a registered migration agent. [30]
[30] Tribunal file, folios 43 and 44.
The past and present behaviour of the applicant towards the department
The delegate found that there is no evidence that the applicant has been uncooperative with the Department or Departmental staff and gave this consideration some weight in the applicant’s favour. The Tribunal invited the applicant to comment on this consideration. The applicant told the Tribunal he did not have any issues with the Department. The Tribunal finds that the past and present behaviour of the applicant towards the Department weighs against the cancellation of the applicant’s Student visa and the Tribunal gives this consideration some weight.
Whether there are persons in Australia whose visas would, or may, be cancelled under s140
The applicant told the Tribunal that there are no persons in Australia whose visa would, or may, be cancelled under s.140 of the Act. The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s Student visa.
Whether there are mandatory legal consequences to a cancellation decision
The delegate found that the ongoing cancellation of the applicant’s Student visa would mean that the applicant is an unlawful noncitizen which may make him liable to be detained under s.189 of the Act and be removed from Australia under s.198 of the Act if he does not voluntarily depart Australia.
The delegate also found that having had a visa cancelled under s.116 will mean that the applicant will become subject to s.48 of the Act which means the applicant will have limited options to apply for further visas in Australia and may be required to return to India, noting that one effect of s.48 is that the applicant will not be able to apply for some visas for three years after cancellation unless he can show he meets Public Interest Criterion 4013. The Tribunal invited the applicant to comment on whether there are mandatory legal consequences to the cancellation of his Student visa but the applicant declined to do so.
The Tribunal finds that there are the mandatory legal consequences as set out in the delegate’s decision for the applicant that would arise from the ongoing cancellation of his Student visa. The Tribunal finds this consideration weighs in support of the cancellation of the applicant’s Student visa as these legal consequences are the intended outcome of a finding that a breach of a condition of a visa should result in the cancellation of that visa. The Tribunal gives this consideration some weight.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation
The applicant told the Tribunal that he does not have any children in Australia (or elsewhere) and that he has not applied for protection nor made claims of being in need of protection. The Tribunal finds that there is no evidence before it to indicate that the removal of the applicant from Australia, should that be necessary as a result of the cancellation of his Student visa, would place Australia in breach of any obligations it has arising under relevant international agreements. The Tribunal finds this consideration is neutral and does not weigh in support of or against the cancellation of the applicant’s Student visa.
Any other relevant matter
The applicant’s representative submitted to the Tribunal that if the applicant departed Australia whilst the holder of a Bridging E visa that would have brought the applicant’s review rights before the Tribunal to an end. The Tribunal does not accept this submission. Once the applicant has applied for review to the Tribunal and the Tribunal has accepted that it has jurisdiction to conduct that review, as it has in this case, the applicant’s review rights can only be brought to an end by the applicant either withdrawing his application for review or becoming deceased or by the Tribunal discharging its review obligations.
However, the Tribunal notes that if the applicant had departed Australia on a Bridging E visa he would not have had the right to return to Australia on that visa as that visa ceases upon the holder’s departure from Australia under s.82(8) of the Act. This issue was of limited relevance in this review because the applicant was only granted the Bridging E visa on 5 March 2018, after the cancellation of his Student visa on 22 February 2018, and this did not affect the opportunities the applicant had prior to the cancellation of his Student visa to address his breach of condition 8202(2) that attached to his Student visa.
In their closing submissions to the Tribunal both the applicant and his representative submitted the applicant is a genuine student who has tried to resume his studies. The applicant also requested that the Tribunal allow him to resume his studies and referred to the stress his situation was causing his parents, including his mother who he said was praying for him in India at the time of the Tribunal’s hearing. The Tribunal has considered these submissions in its reasons above.
Conclusion
In carefully weighing the above considerations and 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 Subclass 500 (Student) visa.
Michael Ison
Senior Member

Peter Haag
Member