THAPA (Migration)

[2019] AATA 3584

THAPA (Migration) [2019] AATA 3584 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SURENDRA THAPA

CASE NUMBER:  1703822

HOME AFFAIRS REFERENCE(S):           BCC2016/4315960

MEMBER:Justin Owen

DATE:15 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 July 2019 at 10:21am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – applicant did not comply with condition 8202 – applicant ceased to be enrolled in a registered course of study – no compelling need to remain in Australia – unplanned pregnancy of his partner – inability to meet financial commitments – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 48, 116, 119, 140, 189, 198
Migration Regulations 1994, Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 28 February 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).

2. The applicant is a national of Nepal born 19 November 1990.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 26 September 2013 and was subject to condition 8202.  The visa had a stay period with a stay period until 15 March 2017.  On 20 February 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 ceased to be enrolled in a registered course between 20 April 2016 and 19 January 2017.  The applicant did not respond to the NOICC.  On 28 February 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. 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.

4. The applicant appeared before the Tribunal on 20 June 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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 (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. 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).

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

10. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 28 February 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 between 20 April 2016 and 19 January 2017, a total of 8 months and 30 days. 

11. The applicant made a written submission to the Tribunal through his representative where it was stated that the applicant did not contest the Department’s findings and ‘fully concedes’ his failure to enrol in a registered course (T1, Folio.21). 

12. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 20 April 2016 and 19 January 2017. 

13. 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

14. 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

15. 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.

16. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia.  The Tribunal accepts that the applicant has engaged in some study since being granted his Student visa in September 2013. As outlined in his written submission to the Tribunal, the applicant completed a Certificate IV and Diploma in Accounting at the Australian Ideal College on 21 February 2016.  The Tribunal also notes his discontinued enrolment at the William Blue College of Hospitality and Tourism (T1, Folio. 17) and his further enrolments at the King’s Own Institute in March 2016 and at the Asia Pacific International College in March 2017.  The Tribunal notes the applicant’s submissions concerning the impact fatherhood and the arrival of a young child had upon his ability to study successfully, the Tribunal nevertheless notes the applicant’s failure to successfully complete any studies at the higher education level since being granted the visa almost six years ago. The Tribunal furthermore notes from the applicant’s written submission to the Tribunal that some of his courses of study and the educational institutions he has attended were either not eligible education providers or courses of study for a higher education visa.    

17. The applicant expressed to the Tribunal his desire to study at the higher education level.  He submitted that he had no other purpose for coming to Australia other than study.  He claimed at the hearing that his desire was still to return to Nepal after he had completed his Bachelor degree and gained Australian work experience.    The Tribunal accepts that the applicant has been in Australia for the principal purpose of study: the Tribunal notes however that the vast bulk of this has not been at the higher education level for which she was granted a 573 Higher Education visa.   The Tribunal finds that despite being granted a Student visa in 2013 – almost six years ago – his commitment to and progress in his studies – as outlined in his submission to the Tribunal - at the higher education level has been poor.  The Tribunal notes the impact the applicant’s claimed child in 2016 especially had upon his ability to study successfully and accepts it caused him a degree of disruption.        

18. The Tribunal appreciates the applicant has enrolled in a number of courses but notes he has not on the evidence before it successfully completed any courses beyond a Certificate Iv and Diploma of Accounting almost six years since being granted a higher education student visa.      

19. Based upon the evidence before it the Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study.  The Tribunal notes however that this purpose has not resulted in significant academic success and achievement given the applicant’s considerable time in Australia.  The Tribunal notes that at the time the applicant’s visa was cancelled he was in fact enrolled and studying a Bachelor of Business course at the Asia Pacific International College.  The applicant has provided the Tribunal his 2017 academic year transcript which illustrated he made some progress across the two semesters (T1, Folio.38).  He paid his fees for the 2017 year (T1, Folio.39) and has claimed his enrolment was cancelled in 2018 by his education provider because of the cancellation of his visa. 

20. The Tribunal recognises that the applicant has made some progress towards a Bachelor of Business degree at APIC.  The Tribunal however also notes that the applicant was first granted his Student visa almost six years ago and he is no longer enrolled in the Bachelor of Business course.  The Tribunal on the evidence does not consider the applicant has a compelling need to remain in Australia for the purpose of his studies.  The Tribunal considers the applicant could enrol in a similar course of study offshore.  On the evidence before 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 slightly against cancelling the visa.

21. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. 

22. There is no evidence before the Tribunal that the applicant has been non-compliant with any other visa conditions beyond his failure to comply with Condition 8202.  The oral testimony of the applicant suggests that the applicant was aware he was in breach of the conditions of his Student visa by failing to remain enrolled in a higher education course of study.  He agreed with the Tribunal that he had received a letter concerning his visa when being granted the visa and agreed he was aware that a condition of his Student visa was that he remain enrolled in a registered course at the higher education level   At the hearing the Tribunal asked the applicant if he had met the other conditions of his visa.  He said he had done so.  There is no evidence before the Tribunal that this is not the case.   The Tribunal has taken into account the applicant’s explanation as to his failure to remain enrolled in a registered course of study for multiple years (ie the pregnancy of his girlfriend and subsequent birth of their claimed child; the claimed cancellation of his course of study by his education provider because of his visa status) and his failure to successfully complete a higher education course of study despite being in Australia for almost six years.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

23. 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 raised with the applicant his claimed son.  According to the copy of a NSW Birth Certificate supplied to the Tribunal, the applicant’s claimed son is around two and a half years old and was born at St George Hospital in October 2016 (T1, Folio. 19).  For the purposes of this review application the Tribunal accepts that the child, Master Reyaan Thapa, is the son of the applicant.  The Tribunal asked the applicant what assistance he provides his son.  He responded that he does the usual things.  He said he worked three to four days a week and was looking after his son on the other days.  He said that his partner, the mother of the child, who is also a Nepalese national on a Student visa worked the other days each week at the same warehouse he was employed at.  The applicant said that he was getting paid about $450 a week whilst his wife was receiving around $400-$420 per week.  The applicant said the rent for their property in Campsie is paid by them jointly.  The Tribunal notes the applicant’s wife as a Nepalese national is not receiving government assistance or financial support.  The applicant claimed that neither he nor his partner are receiving any financial assistance from their respective families and he last received assistance from his family for the payment of education fees in 2016.  The applicant claims he and his partner each have no family residing in Australia. 

24. The Tribunal has carefully considered the hardship that might be caused to his partner and his son should his visa be cancelled.  The applicant stated that his partner and their son would return with him to Nepal should his visa remain cancelled.   The Tribunal notes that it asked the applicant if he had discussed returning to Nepal with his partner should his visa be cancelled.  He said he and his partner had discussed this.  He said that she would be happy to go back to Nepal and it was fine for her.  He said that either way – whether his visa remained cancelled or not as a result of the Tribunal’s review -  was a good way for him and his partner.

25. The Tribunal notes furthermore that his partner is also visiting Australia on a Student visa.  The applicant said that she has not studied since the birth of their son – a period of over two and a half years at the time of decision.   On the evidence before it the applicant’s partner is on a temporary Student visa and has not studied for a significant period of time.  Given neither the applicant nor his partner are Australian citizens or permanent residents, their son Master Reyaan Thapa is not an Australian citizen.  The applicant furthermore claimed in oral evidence that the plan has always been to return to Nepal with his son.  The Tribunal considers the hardship to be caused to his family may amount to a degree of disruption.  It does not however consider this to be a particularly onerous state of affairs and the generator of any remarkable degree of hardship for the applicant’s family in Australia. 

26. If the applicant’s partner and son were to remain in Australia should the applicant be compelled to return offshore, the Tribunal accepts there may have been a degree of hardship for both his son and partner from both a financial and emotional perspective.  The Tribunal notes however that the applicant has been clear that his partner and wife will return with him to Nepal. His partner is on a temporary visa granted for a purpose to which she may not, on the applicant’s oral testimony, be currently complying with.   

27. Similarly the Tribunal considered the amount of hardship the cancellation of the applicant’s visa might have upon his own family in Nepal.    The applicant said his parents last paid fees for his education in 2016 and has claimed his mother and father would pay his fees should he be permitted to re-enrol.  The Tribunal accepts the applicant’s family in Nepal may feel a degree of disappointment at the applicant returning without meeting all of his educational ambitions.   The Tribunal notes that it nevertheless remains an option for the applicant to enrol and study at the higher education level in Nepal or elsewhere and his parents can choose to financially support the applicant’s study offshore if they so desire.

28. In his written submission to the Tribunal the applicant raised the stigma that he and his partner faced in becoming parents together out of wedlock.  In the submission it was claimed that a strong stigma was attached to men, women and children born out of an unmarried relationship in the Nepalese community.  The Tribunal accepts that the applicant’s family and acquaintances may have been taken aback from learning of the pregnancy and birth in 2016.  There is no evidence however before the Tribunal that suggests any meaningful challenges the applicant and his partner and child will face should they return to Nepal in 2019. The Tribunal gives the claim little weight.       

29. The Tribunal asked the applicant at the hearing what hardship the cancellation of his Student visa would cause him personally.  The applicant replied that not being able to study and achieve a degree was the main thing.  He stated that other than that, he could return to Nepal.  He stated that he came to Australia to study.   He also stated that whilst he could study in Nepal, the degree would not be of the same quality as an Australian qualification and would subsequently have an adverse impact upon his future employability.  The Tribunal, on the evidence before it considers the hardship that would be caused to the applicant to be limited. 

30. The Tribunal accepts that there will be a degree of hardship caused to the applicant and his partner should his visa be cancelled.  The Tribunal accepts that the cancellation may be disruptive to not only the applicant but his partner and child but notes that the applicant’s wife, as pointed out by the applicant, is also a Nepalese citizen in Australia on a temporary Student visa for the purposes of study which she is not currently engaged in.  Furthermore the applicant has made it very clear to the Tribunal that his partner was fine to return to Nepal and the intention was for the family to ultimately return to Nepal anyway.  The Tribunal accepts there is some emotional and financial cost to both the applicant and his partner should his visa be cancelled but it does not consider this to be particularly onerous to either party or to their son. The Tribunal furthermore considers the period of time the applicant was not enrolled in a higher education course of study as highlighted in the decision record and the applicant’s testimony to the Tribunal to be substantial and does not accept the circumstances the applicant has articulated necessarily precluded him from remaining enrolled. On the evidence before it concerning the degree of hardship, the Tribunal weighs this factor slightly in favour of cancelling the visa.

31. The Tribunal has considered the circumstances in which the ground for cancellation arose.

32. In his written submission to the Tribunal the applicant has submitted that the unplanned pregnancy of his partner precipitated a situation where he was unable to meet his study obligations and ultimately failed to meet the ongoing requirements of condition 8202 attached to his Student visa. 

33. The applicant claims he and his partner started cohabitating in 2015 and around January 2016 she was pregnant.  He writes that he was 25 and she was 22 years of age at the time.  He claimed that whilst this was a significant milestone in their lives, it was also contrary to Nepalese culture and tradition.  The applicant stated that there was a strong stigma against men, women and children born out of wedlock or of unmarried relationships in the Nepalese community.  This led to ‘anxiety and mental unrest’ for the applicant.  It was also claimed that the imminent challenge of assuming additional and substantial parental responsibilities of an expectant father at the age of 25 in a foreign country with no family or social support of others other than his partner was overwhelming. 

34. The applicant furthermore claimed that the pregnancy and subsequent child-birth led to a wide range of personal, financial, social and health challenges and commitments.  These, it was claimed, eventually led the applicant to struggle financially in March 2016 (T1, Folio.21).  The applicant pointed out that he persisted nevertheless in continuing with his studies and enrolled in a Bachelor of Business (Accounting) at King’s Own Institute (KOI) on 14 March 2016, paying a portion of his fees ($2,750) on 11 February 2016.  His submission stated that KOI cancelled his CoE due to non-payment of outstanding fees on 20 April 2016. The applicant claimed that he requested an extension from KOI in paying his fees on numerous occasions but was declined but has provided no evidence of such requests to the Tribunal.  The Tribunal notes that 20 April 2016 marks the first day from when the applicant failed, as found by the delegate, to maintain condition 8202 on his Student visa. 

1. The Tribunal accepts that the essentially unplanned pregnancy of his partner may have been a surprise to the applicant.  The Tribunal accepts that this would have brought a degree of added stress and pressure to the household.  The Tribunal does not however consider this to be an unusual situation for any couple commencing a family, notwithstanding the fact the applicant and his partner were not at ‘home’ surrounded by family and friends.

2. The Tribunal notes the applicant’s comments about the ‘stigma’ in the Nepalese community of having a child out of wedlock and the additional stress this caused him and his partner.  The Tribunal accepts that this may have been an emotional challenge for himself and his partner.  The Tribunal does not however accept that this stress precluded the applicant from being able to maintain his enrolment in a higher education course of study.     

3. The Tribunal notes that the applicant’s inability to meet his financial commitments to his studies occurred at an early stage in his partner’s pregnancy: his enrolment was finally cancelled for non-payment of outstanding fees by KOI on 20 April 2016.  His son was not born until six months later on 20 October 2016.  The applicant claimed at the hearing that the monies needed for his studies instead went towards preparing for the new baby.  The Tribunal however is of the opinion that the applicant’s challenges in meeting his financial obligations to his studies go back some time: he only made a part payment of his fees on 11 February 2016 leading to the cancellation of his enrolment two months later.  In the Tribunal’s opinion the applicant was failing to meet his financial obligations even before the applicant was also facing the additional challenges of his partner’s pregnancy and the subsequent arrival of his son.  The Tribunal also notes that, as stated by the applicant at the hearing, the applicant did not actually complete any subjects successfully at KOI. 

4. The Tribunal acknowledges the applicant did make attempts to reenrol after the cancellation of his Student visa as a result of KOI’s cancellation of his enrolment.  The applicant submitted that he missed the July 2016 enrolment intake due to the pressures he and his partner were facing in the lead up to the birth of their son on 20 October 2016.  The Tribunal accepts that there would undoubtedly have been competing pressures at that time.  Again, the Tribunal does not consider this to be a particularly unusual or onerous state of affairs particularly given the applicant was in Australia on a Student visa for educational purposes.

5. The applicant claimed he subsequently attempted to enrol at the next earliest date by engaging ‘Baba Education Consultancy’ on 15 November 2016 and transferred part of his course fees to the consultancy in the hope of securing an enrolment.  This, for reasons he claims beyond his control, did not materialise.  The Tribunal accepts that the applicant may have had challenges with his education consultant as he discussed at the Tribunal hearing.  The Tribunal nevertheless notes that the responsibility for meeting the terms of his Student visa – which includes remaining enrolled and continuing to meet condition 8202 – remains with the applicant.  The Tribunal does not consider the applicant’s reliance on an external education consultant alleviates himself of the obligation to maintain his enrolment. 

6. The Tribunal notes that the applicant did, as outlined in his submission, secure an enrolment at the Asia Pacific International College for a Bachelor of Business degree to commence in March 2017.  The Tribunal accepts that the applicant did apply for this enrolment prior to the cancellation of his visa by the delegate and throughout 2017 made a genuine effort (albeit with mixed academic results) to pass his course whilst paying all his tuition fees.  The Tribunal gives the applicant some positive weight for these efforts.

7. The Tribunal notes however that the applicant is no longer enrolled in his Bachelor of Business course.  At the hearing the applicant claimed his enrolment was cancelled in 2018 by APIC because his Student visa had been cancelled.  The applicant said he had completed two semesters.  The Tribunal asked if his enrolment was cancelled due to the non-payment of fees. The applicant said no, it was cancelled because his visa had been cancelled.  The Tribunal asked the applicant to provide documentation of his cancellation of his enrolment at APIC due to the cancellation of his Student visa.  The applicant said he had an email from APIC that stated they had had to cancel his CoE because his Student visa had been cancelled.  The Tribunal asked the applicant to provide this correspondence to the Tribunal.  Such correspondence had not been provided to the Tribunal at the time of decision.  At the hearing the Tribunal noted the applicant’s written submission from 14 August 2018 (T1, Folio.20-22) which stated the applicant was at that time continuing his studies of a Bachelor of Business at APIC.  The Tribunal at the hearing noted the written submission claimed the applicant had completed Semesters 1-3 of his degree and was about to complete his studies in the desired discipline.  The Tribunal noted these claims had been made in August 2018: the Tribunal asked the applicant if he was therefore still studying in August 2018.  The applicant was evasive in his response and said he needed to submit a ‘new document’ in response to this.  The Tribunal is not satisfied with this response.  There is no evidence before the Tribunal of any studies the applicant undertook at APIC in 2018, despite the claims in August 2018 that he was continuing his studies at this institution.  There is no evidence before the Tribunal that the applicant’s enrolment was cancelled by APIC in 2018 specifically because of the cancellation of his visa.  There is no corroborative evidence of any fees that were paid for the 2018 academic year by the applicant to APIC.  The Tribunal on the evidence before it does not accept that the applicant was studying in August 2018 as claimed in his written submission and does not accept he paid tuition fees for the 2018 year.  The Tribunal furthermore does not accept that the applicant’s enrolment was cancelled by APIC purely on the basis of the cancellation of his Student visa, noting APIC continued to maintain his enrolment and studies throughout 2017 despite the cancellation of his Student visa in February 2017. 

8. The applicant on the evidence in the decision record and in his written submission had failed to adequately rectify his enrolment situation as the holder of a Higher Education Student visa for multiple years.  The applicant was a direct party to his enrolment.  The Tribunal notes that visa holders are expected to be mindful of the requirements of their visa and to inform the Department of any changes to their status.   The Tribunal has taken into account the applicant’s claims concerning the stress and hardship his partner’s pregnancy and the arrival of their new baby had upon him and its collective impact upon his ability to remain enrolled and studying at the higher education level.  Whilst it has some sympathy for the applicant, the Tribunal nevertheless does not accept that these challenges precluded the applicant from remaining enrolled in a higher education course of study as required by condition 8202.  The Tribunal recognises the efforts the applicant did make to reenrol in 2016 and 2017 and has given those some positive weight.  Nevertheless the Tribunal has grave doubts as to the claims that the applicant has made in his written submission concerning his claimed enrolment and study in 2018.  The Tribunal does not accept on the evidence before it that the applicant was continuing his studies at APIC on 14 August 2018 when he made a written submission to the Tribunal through his representative claiming this.  The Tribunal does not accept he was paying fees during 2018 and there is no corroborative evidence before the Tribunal that his enrolment was cancelled by APIC in 2018 on the basis of the cancellation of his visa. 

9. The Tribunal accepts that the applicant faced a degree of stress and anxiety through his partner falling pregnant and then together facing the inevitable challenges of a new family.  The Tribunal accepts that this was exacerbated by their absence from Nepal and their family and friends.  The Tribunal does not however accept that these circumstances precluded the applicant from maintaining his enrolment.  There is no evidence that the applicant sought any professional assistance or advice to help treat or address the claimed anxiety and stress.  The Tribunal accepts that the applicant was facing a challenging situation: it does not however accept that the situation made it beyond the applicant’s control to maintain his enrolment in a higher education course of study.  

10. In relation to the circumstances in which the ground of cancellation arose, the Tribunal weighs this factor in favour of cancelling the visa.

11. The Tribunal has considered the past and present behaviour of the applicant towards the Department. There is no evidence before the Tribunal that the applicant has not complied with all other visa conditions. The Tribunal notes however that the applicant failed to respond to the Department’s s.119 letter. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

12. 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. 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.  

13. 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.  The Tribunal notes the applicant with his partner – who are both temporary visa holders - have a two and a half year old son that was born in Australia.  The Tribunal notes however that both the applicant and the mother of the child are Nepalese nationals without Australian citizenship or permanent residency and the child as a result has not acquired Australian citizenship.  The applicant in his oral testimony clearly stated that his partner and his son would return to Nepal with him should his visa be cancelled.  The applicant asserted at the hearing that his and his partner’s plans were to return to Nepal with their son upon the completion of their studies and the acquisition of some work experience.  The Tribunal considers that the best interests of the child in this review are to remain with his father and mother: as the applicant has asserted will be the case should his visa be cancelled.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

14. 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. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

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

    DECISION

16. 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.