Patel (Migration) [2022] AATA 4486 (18 November 2022)

Last Updated: 5 January 2023

Patel (Migration) [2022] AATA 4486 (18 November 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Kunj Patel

REPRESENTATIVE: Mr Jaiminkumar Darbar (MARN: 1575637)

CASE NUMBER: 2119811

HOME AFFAIRS REFERENCE(S): BCC2020/767285

MEMBER: Gabrielle Cullen

DATE: 18 November 2022

PLACE OF DECISION: Sydney

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

Statement made on 18 November 2022 at 5:01pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered course – unsatisfactory course progress and non-payment of fees – discretion to cancel visa – victim of crime and mental health – lack of communication from college about processes for payment of fees – extended period of non-enrolment – new enrolment made just before delegate’s decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2), (3)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 December 2021 made by a delegate of the Minister for Home Affairs to cancel the 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 under s 116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.
3. The Tribunal received an application for review of the delegate’s decision from the applicant on 22 December 2021. The applicant attached the Department’s Notification of Cancellation under s 116 dated 15 December 2021 which indicates that on 8 November 2021 the Department notified and invited the applicant to comment on the intention to consider cancellation of his Subclass 500 Student visa on the basis he had not been enrolled in a course of study since 30 August 2019. The applicant provided a response on 22 November 2021.
4. The applicant appeared before the Tribunal via video on 2 November 2022 to give evidence and present arguments.
5. The applicant was represented in relation to the application for review by his registered migration agent. His representative attended the hearing.
6. He was given until 9 November 2022 to provide additional evidence.
7. 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

8. 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). 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?

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 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).
10. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).
11. The decision record set out that the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa on 8 November 2021. The Tribunal is satisfied that the NOICC was validly issued.
12. The delegate found on 15 December 2021 the applicant had not been enrolled in a registered course of study since 30 August 2019. The delegate proceeded to cancel the visa on 15 December 2021.
13. As raised with the applicant at hearing via s 359AA the applicant’s Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study from 30 August 2019 when his enrolment was cancelled for non-payment of fees until the date of the delegate’s decision of 15 December 2021. The Tribunal also raised with the applicant via s 359AA that movement records indicate he was the holder of a Subclass 500 Student visa granted on 24 May 2019 valid to 15 December 2021 in which condition 8202 applied.
14. The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study from 30 August 2019 to the date of the delegate’s decision. The applicant did not dispute that he had not complied with condition 8202(2) of his visa.
15. Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (COE) in a registered course or a full-time course of study or training from 30 August 2019 to 15 December 2021 while the holder of a Subclass 500 Student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).
16. The Tribunal is therefore satisfied that the grounds for cancellation in s 116(2)(b) exist.

Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.
18. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.

Background

19. The applicant is a 25-year-old citizen of India. He first arrived in Australia on 4 September 2015 on a Subclass 573 Student visa valid to 15 March 2019 to undertake a Diploma of Information Technology and a Bachelor of Information Technology. The evidence indicates he successfully completed the Diploma of Information Technology but enrolment in the Bachelor of Information Technology was cancelled for unsatisfactory course progress on 18 February 2019. He was granted a further Subclass 500 Student visa on 24 May 2019 to study a Bachelor of Business from 13 May 2019 to 22 April 2022 but enrolment was cancelled for non-payment of fees on 30 August 2019. Prior to the delegate’s decision he submitted a COE to study a Bachelor of Business Information Systems from 17 January 2022 to 12 May 2024, but enrolment was cancelled.^[1] The evidence indicates he has been unable to study since the cancellation of his visa as a no-study condition has been placed on his bridging visa.
20. The applicant provided a submission to the Department in response to the NOICC outlining the reasons as to his lack of study during the relevant period and a COE to study a Bachelor of Business Information Systems from 17 Janaury 2022 to 12 May 2024. He provided evidence of having successfully completed the Diploma of Information Technology studied from 8 September 2015 to 20 January 2017.
21. In the submission the applicant indicates that he came to Australia to study a Diploma of Information Technology and when he started the bachelor course at Federation University in 2018, he paid the fees for 2 semesters but struggled due to less support, then moved to study the Bachelor of Business at UBSS in 2019. He was only 20 at the time. He claims in June 2019 he was assaulted and robbed with a knife which left him scared and traumatised and he was not able to focus on life or anything else. He claims he became mentally unwell and he informed his education provider who understood the situation. However, he claims in 2019 he was required to pay the tuition fees for the September 2019 intake. He claims the due date was 23 August 2019, his mother transferred the fees, he was not working because of the depression and trauma he was coping with at the time. He claims the college changed their bank account and did not allow him to enrol in the September 2019 intake. He claims he has proof of the fees paid and he continuously tried to contact the education provider but his calls were never answered. He claims he thought his COE was active.
22. He claims he has a friend at Stride Mental Health who supported him as he used to have panic attacks and stayed at home. He claims as soon as he was better, he returned to his education provider but they informed him his COE was cancelled and he would not be able to continue. He claims he was heartbroken as he came to Australia to gain knowledge and become educated in order to have a bright future. He claims due to COVID in early 2020 he did not know what to do and in June 2020 contacted his college and partially coordinated with them but they never mentioned how the fees can be adjusted and required statutory declarations.
23. He claims he never knew his COE was cancelled and despite contacting them they never advised him. He claims due to Covid he could not provide the statutory declarations to them and as soon as lockdown finished, he started contacting agents in relation to enrolment and attached a COE.
24. He claims there are many study institutions available in his country but admission is difficult and the curriculum is different and not as practical as in Australia. He claims studying abroad will give him international exposure which adds weight to his resume for a good job and better future. He also refers to studying in an English-speaking country which will improve his communication skills, and refers to the value of an international qualification and that candidates with international degrees are preferred.
25. He refers to the course he has enrolled in, the Bachelor of Business Information Systems and why he chose this course provider and claims that his aim is to become a professional in the field of information systems, which will accelerate his knowledge and skills. He notes that India is the IT hub of Asia and international qualifications are highly valued in multinational and large Indian IT companies. He claims he aspires to return to India to join a start-up company to implement his ideas as a top IT scholar. He submits he is a genuine student who has been through much in his life including health, mental and family issues. He submits there will not be any gap in his future studies and enrolments.
26. He also attached an email from UBSS dated 10 September 2019, in which they thank him for visiting the previous week and advising that the transaction was unmatched to his record, shown as “education fees” and payment of $4,731 has been received and evidence this amount was paid on 23 August 2019. He was advised to contact Learning Support for re-enrolment approval. Also attached was an email dated 6 September 2002 from the NSW police advising that DNA has been matched to his robbery case from June 2019.
27. Prior to the hearing the applicant submitted the following statement.

    The gap in my study was due to so many reasons and circumstances beyond my control. You can see that I have been genuine student to end of 2019 and I never intended to change that. Due to the lack of communication with college regarding the change of banking details for the tuition fees payment, no confirmation, or updates in the college system that my mother has transferred the fees from overseas and cancelling my enrolment without any due diligences, I suffered from semester cancellation. After that many other things have happened in my life such as robbery, education agents who put me in bad spot and wrong course, and COVID-19 outbreak has affected my course re-enrolment process.

    My current situations:

    Current employment details – I am Currently working at Vodafone as Sales rep/ICT engineer – Full time since Feb 2022 at Vodafone Liverpool, NSW 2170.

    Interested in Studying Bachelor of IT – My dad was an IT engineer, and I grew up with computers. I used to take part in his day-to-day work. I was really intrigued about how the technological world operates. After his death in year 2011, I wanted to pay respect to him and decided to study a Degree in IT and make my life and career in IT field only. I had a proper knowledge of what I was getting myself into as I was the closest to my father. During my childhood days he used to explain me the IT world and its advantages for a normal person. Pursuing his guidance, I decided to do the one thing that got me closest to him.

    Family situation – my mother is in India living alone. Father died in year 2011 due to heart attack. I am living in Australia with my younger brother Purav Patel, who is on student visa (he is also studying IT and his study is going very well)

    Reasons for not having current enrolment - because of NO STUDY condition on my bridging visa

    Incentives to return to India upon completion of my study – me and my brother have decided to go back to India and look after mom as she is getting older and need us to live together. We have our house, land, funds, saving in bank accounts, commercial offices which we have rented out currently. We have many ties to return to India as our only goal is to achieve good education for better future and career.

    Another theft at my house recently in year 2022 – Police complaint number E88807514

    I can further explain all these during my hearing.

    I am requesting you to kindly consider my above situation and circumstances and allow me to study a course by giving a second chance.

28. The applicant provided evidence at hearing as to why his visa should not be cancelled which where relevant is outlined below.
29. As to his study record, he confirmed he completed the Diploma of Information Technology in September 2017, then enrolled in the Bachelor of Information Technology. He initially said his enrolment was cancelled as he failed one subject twice. He then said he failed a subject twice in the diploma course. He said it was a subject to do with networking. He said he did not pass any subjects in the Bachelor of IT. He advised he did not understand the lectures and the way of studying was different to that in India, with more assignments. The Tribunal raised as of concern that he studied this course from 19 March 2018 to 18 February 2019, for at least 2 semesters and did not successfully complete any course. He referred to passing 3 subjects and failing 2. The Tribunal raised as of concern his changing evidence and requested he provide the academic transcript for the Bachelors of IT. The Tribunal asked whether he passed any subjects other than those for which he was given credit from studying the Diploma of IT. The Tribunal gave him time after the hearing to provide the academic transcript but raised with him on the evidence before it that without it, it may find he did not pass any subjects in the Bachelor of IT, other than those he was given credit for as he studied the Diploma of IT.
30. As to why enrolment was cancelled in the Bachelor of Business, he referred to a robbery incident in June 2019 where 6 people with 3 knives robbed him and the mental effect this had on him where he did not want to go out at night. He gave confusing evidence as to whether he filed a police report at Blacktown Police Station or not and he was given time to provide one after the hearing. He referred to being contacted 1½ years later and advised he decided he did not want to pursue this and go to Court. As to how this incident affected his enrolment, he said he feared going out, he talked to his mother in India and friends would pick him up. He said he gave up working at night and they were unable to give him morning shifts. He said he suffered depression. He said he has no physical evidence and did not seek help from his GP, a psychiatrist or psychologist. He said he was over it by the end of 2019. The Tribunal raised with him that his evidence appeared inconsistent with that in his statement to the Department where he referred to seeking help from a friend who was a service leader at Stride Mental Health. He said that was later, towards the end of 2020 and the Tribunal questioned if it was over in 2019 why he would be seeking help with his friend in mental health at the end of 2020. He confirmed he was able to study and work from the end of 2019. The Tribunal then questioned if that was the case why he did not study from the end of 2019 to December 2021 and questioned the effect this incident had on his lack of enrolment.
31. He then referred to a mix up with the payment of fees in September 2019 and explained that his mother paid the fees but due to a mix up the college did not receive them. He referred to the email submitted dated 10 September 2019 where they indicated that they now have received payment of fees but that he will have to go to Learning Support for re-enrolment approval. He said he went and was required to fill in some documents and obtain statutory declarations and he filled them in but then COVID happened. The Tribunal noted that COVID did not happen until March 2020 and raised with him that it was difficult to understand if he wanted to study why he had not obtained the required documents and re-enrolled as soon as possible if he was in Australia to study.
32. The Tribunal questioned his lack of enrolment in 2020 and 2021 and that it seems odd and of concern that he enrolled just before the cancellation of the visa after receiving the NOICC. He said there was COVID and lockdown and the Tribunal raised with him that he was able to study online in that period and then he said to study IT was very competitive and colleges would not enrol him when they saw his study gap, study history and that his visa had been cancelled by the Department. The Tribunal questioned why he was then able to enrol after receiving the NOICC and that courses were available in the period of 2020/2021 during COVID. The Tribunal questioned whether he is in Australia to study and he said he wants to study. He said he has assets and a business in India and his father was in computers and that is why he wants to work in that area. He referred to his mother being in India. He said he last returned in 2018/19 and the Tribunal questioned if he was so connected to India why he had not returned to India since then and he said his brother came to study in Australia.
33. The Tribunal asked about his work and he said he worked at El Gena from December 2020 part time and the Tribunal questioned why he was able to work and not study. He said since February 2022 he has worked at Vodafone as an IT Engineer, and before that worked at Apple from September 2021. The Tribunal asked about his work prior to that and his response was vague and lacking in detail, referring to casual work from August 2019 to September 2021 and referred to working in a friend’s warehouse for 3 months and that he did not work for 8/9 months in that period.
34. The Tribunal asked further questions regarding the discretionary criteria which where relevant is outlined below.
35. His representative indicated that from 2015 to 2019 the applicant was a genuine student who made genuine attempts to study and that the only time he had not been enrolled was from 2019 to 2021 and that there were many reasons why. He referred to the June 2019 robbery, the college getting the payment of fees wrong and cancelling his COE, and that in 2020/21 during COVID, colleges only took the cream of the crop of IT students and it was difficult for the applicant to obtain enrolment as his visa had been cancelled and he had not been enrolled for some time. He requested the applicant be given another chance as he is a genuine student in Australia to study.
36. Following the hearing the applicant provided the following regarding the police report:

    As per the AAT hearing, I visited the Blacktown police station on the same day that is the 4th of November 2022 at around 3:30pm to ask them if they were able to print me a police report of the incident that happened in the June of 2019. Given I already had the case ID number, they checked and a constable Ewing informed me that as the police reports contain an extensive detailed summary of the incident and the victim.

    They will not be able to hand me any printouts of any sorts. I informed them why I was requesting the report and they further added that I can provide the department requesting with the event ID and the case number and they can request the report directly from the AFP. I did try calling the online help team too in case there was a way around and I was able to provide you with any sorts of information on a paper but I failed to get anything from AFP other than the case number and event ID.

    The event ID for that report is: E72971880 and the case number for the same is C138122301.

37. He also provided an academic transcript from UBSS issued on 24 August 2019 indicating in the Bachelor of Business he was exempted from one subject, passed one and failed 2 subjects.
38. He also provided his Academic Transcript for the Bachelor of Information Technology showing he was enrolled in 8 courses in 2018, of which he successfully completed 2, was given a non-assessed fail in 3, a late withdraw in one and a marginal fail in 2.

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

39. The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. The evidence from the applicant is that he first arrived in Australia on 4 September 2015 on a Subclass 573 student visa valid to 15 March 2019 to undertake a Diploma and Bachelor of Information Technology and Bachelor of Information Technology. The applicant indicated at hearing that his purpose for coming to Australia was to study these courses. He said there was no other purpose for his travel to Australia. The Tribunal notes he was enrolled and successfully completed the Diploma of Information Technology studied from 8 September 2015 to 20 January 2017. The Tribunal accepts that his travel to Australia in September 2015 was for the purpose of study.
40. The evidence from the applicant indicates he did not successfully complete the Bachelor of Information Technlogy as he found it difficult and the evidence indicates enrolment in this course was cancelled for unsatisfactory course progress on 18 February 2019. He then enrolled in the Bachelor of Business at UBSS with enrolment cancelled for non-payment of fees on 30 August 2019. Prior to the delegate’s decision he submitted a COE to study a Bachelor of Business Information Systems from 17 January 2022 to 12 May 2024 but enrolment was cancelled in that course and the Tribunal accepts he has been unable to study as he has held a no study condition on his visa since the time of the cancellation of the visa in December 2021.
41. His evidence is that he now wants to stay and study to obtain a degree but is unable to study due to his current no-study condition. He said he has strong incentives to return to India following attainment of a degree and is a genuine student. He outlines why he wishes to obtain the degree.
42. While the Tribunal has accepted above that his travel to Australia in 2015 was for the purpose of study it does not except for the reasons outlined below that from 2019 his stay in Australia was for the purpose of study. The Tribunal views the extended length of time he was not enrolled from August 2019 to December 2021, a period of over 2 years to be significant and to undermine his claim his stay in Australia was and is for the purpose of study. The Tribunal is of the view if his intention was to study, he would have enrolled and studied in this period. It also views as undermining that if he is in Australia for the purpose of studying that his enrolment in the Bachelor of information Systems was cancelled for unsatisfactory course progress in February 2019.
43. In making this finding the Tribunal has considered the reasons he did not study as raised in his written submissions and oral evidence at hearing in the relevant period.
44. Firstly, the applicant claims that he was the victim of a serious robbery attack in June 2019 which affected him mentally. His evidence at hearing was that from June 2019 to the end of 2019 he was mentally affected and did not want to go outside at night and was depressed. His evidence at hearing was that he did not work as prior to that he worked at night. He said at hearing he did not seek professional help from a GP, psychologist or psychiatrist and that by the end of 2019 he was over it and could work and study. He confirmed at hearing he just spoke to his mother and friends about the mental difficulties he was facing. However as raised with the applicant in his statement to the Department he referred to seeking help from a friend who was a service leader at Mental Health Stride. When the concern was raised he said he saw her in 2020. The Tribunal does not accept this response and is of the view if the applicant received help from a friend in a mental health organisation as a result of the robbery incident he would have provided consistent evidence as to this. It also does not accept his response that he sought the help in 2020 as he advised at hearing he was over the effects by the end of 2019. While the Tribunal accepts that there were events that occurred outside the applicant’s control, such as the robbery, it is not satisfied that the applicant demonstrated that his emotional and mental response to these events left him unable to study, particularly from the end of 2019 and that his failure to maintain enrolment was as a result of these events. It is of the view that if the mental stress he faced was to the extent that he could not study he would have sought medical or professional help in 2019. It is therefore not satisfied that the applicant demonstrated that this event left him unable to study for the reasons he claims and that his failure to maintain enrolment, particularly from the end of 2019 was as a result of this event.
45. The Tribunal accepts that through a mistake the college inadvertently cancelled his COE in September 2019 as there was a mix up in the payment of fees. However, he was provided with a way to re-enrol by contacting a Learning Support coordinator for re-enrolment approval as per the email of 10 September 2010. He also said at hearing he was required to fill in forms and obtain statutory declarations. He claims he did not know his COE was cancelled which the Tribunal has difficulty accepting when the email he submitted refers to him having to re-enrol. The Tribunal does not accept his claim the education provider did not answer his calls as he did not raise this at the hearing. In his statement he also said in early 2020 he did not know what to do and in June 2020 contacted his college and partially coordinated with them but they never mentioned how the fees can be adjusted and required statutory declarations. The Tribunal is of the view if his purpose was to study he would have been in contact with the College sooner than June 2020. Similarly, it also has difficulty that if his purpose of staying in Australia was to study he would have completed the required statutory declarations and re-enrolled prior to the COVID lockdown in March 2020. The Tribunal does not accept this and is of the view if his purpose was to stay in Australia and study he would have obtained the required statutory declarations prior to March 2020 and definitely before December 2021. This is particularly so as the email of September 2019 advises him who to contact to re-enrol and he said at hearing when he contacted them they advised him to fill in forms and gain statutory declarations.
46. He also refers to the difficulties he had enrolling in a course because during COVID courses were limited, as his visa was cancelled and due to his past study record, but the Tribunal questions this when he was able to obtain enrolment in December 2021 to start in January 2022 after receiving the NOICC and prior to the delegate’s decision. The Tribunal is of the view while COVID may have impacted study in person, there were many online IT courses available for the applicant to enrol in and does not accept that his failure to maintain enrolment was as a result of the COVID pandemic and his ability to become enrolled due to his study history and the Department decision to cancel the visa. It does not accept these circumstances left him unable to study and his failure to maintain enrolment in the period was for this reason.
47. The Tribunal also views as of concern that enrolment was cancelled for unsatisfactory course progress in the Bachelor of Information Technology on 18 February 2019, which may indicate a breach of condition 8202(3). The documentary evidence indicates he completed 2/8 units in 2018. It views studying this course from 19 March 2018 to 18 February 2019 only completing 2 subjects, as undermining his claim he is a genuine student in Australia for the purpose of study. While it understands his evidence he found it difficult, it views as of concern the non-assessed fail in 3 courses.
48. As to whether there is a compelling need for him to stay in Australia, he referred to wishing to complete a degree and return to India to work in IT in a start-up. In a statement to the Department, he submitted that there are many study institutions available in his country, but admission is difficult and the curriculum is different and not as practical as in Australia. He claims studying abroad will give him international exposure which adds weight to his resume for a good job and better future. He also refers to studying in an English-speaking country which will improve his communication skills and refers to the value of an international qualification and that candidates with international degrees are preferred. He refers to the course he has enrolled in, the Bachelor of Business Information Systems and why he chose this course provider and claims that his aim is to become a professional in the field of information systems, which will accelerate his knowledge and skills. He notes that India is the IT hub of Asia and international qualifications are highly valued in multinational and large Indian IT companies. He claims he aspires to return to India to join a start-up company to implement his ideas as a top IT scholar. He submits he is a genuine student who has been through much in his life including health, mental and family issues. He submits there will not be any gap in his future studies and enrolments. He said to the Tribunal that at 25 it will be difficult for him to enrol in a university in India.
49. It is accepted that Australian qualifications are more practical and beneficial than those from India and that it may now be more difficult at 25 to enrol and study at a university in India. The Tribunal accepts the benefit to him for his future. The Tribunal has considered the applicant’s evidence, however, on the material before it, the Tribunal is not satisfied that the applicant has a compelling need to travel and remain in Australia.
50. The Tribunal gives this discretionary factor little weight in favour of the applicant.

The extent of compliance with visa conditions

51. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 30 August 2019 to 15 December 2021. The Tribunal considers this period of 2 years and 3 months to be significant, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.
52. There is also evidence that enrolment was cancelled for unsatisfactory course progress in the Bachelor of Information Technology on 18 February 2019, which may indicate a breach of condition 8202(3).
53. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his visa.
54. Although there is no other evidence of non-compliance other than the above, considering the period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, and that enrolment in the Bachelor of Information Technology was cancelled for unsatisfactory course progress, the Tribunal gives this discretionary factor little weight in favour of the applicant.

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

55. At hearing the applicant referred to being unable to return with a degree if his visa is cancelled.
56. When asked why he could not study in India as there are many courses available to him there, he said at 25 it would be very difficult for him to enrol in a similar course in India, it would not be as practical and not be as valued.
57. He also referred to also losing confidence as his friends who have done IT have a degree and are already working.
58. As set out above, the Tribunal is satisfied that the applicant still has study options available to him in his home country, albeit at 25 it is more difficult to enrol. While it accepts there is a degree of hardship to the applicant and his future career and his family as to his lack of obtaining Australian qualifications and learning different perspectives and a more practical degree than that provided by studying in India on the evidence before it, the Tribunal gives this low weight in favour of the applicant. It also gives his loss of confidence for the reasons he claims low weight in favour of the applicant.
59. The Tribunal gives this consideration low weight in favour of the applicant.

Circumstances in which the ground of cancellation arose

60. In his evidence the applicant has advanced several matters that impacted on his ability to study. He has said he was suffering mental stress due to the robbery, his mother did not pay his fees to the correct account and his COE was cancelled by mistake in September 2019, he was required to re-enrol and submit documents and provide statutory declarations but then the COVID situation hit his home country, it was difficult for him to enrol during COVID due to the gap in studies and as his visa had been cancelled, he was provided different advice by education agents and his calls were never answered. However, as raised with him, the Tribunal has difficulty accepting these factors led to his lack of enrolment in the relevant period and particularly from the end of 2019 to the date of the delegate’s decision.
61. Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that the applicant was impacted by the robbery in June 2019, the cancellation of his enrolment in September 2019 and the COVID situation but not to the extent claimed which led him to be unable to study for over 2 years from 30 August 2019, and particularly the end of 2019 to December 2021.
62. On the evidence it does not accept that the events advanced by the applicant created circumstances outside the applicant’s control leading to the cancellation of his student visa. Therefore, the Tribunal only attributes them low weight in favour of the applicant.

Past and present behaviour of the visa holder toward the Department

63. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past. The Tribunal gives this consideration some weight in the applicant’s favour.

Whether there would be any consequential cancellations under s 140

64. The applicant claimed to be single with no dependents. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor no weight.

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

65. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
66. If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow him to finalise his affairs before returning to India, subject to any appeal of the Tribunal decision. It is acknowledged that there may be restrictions on travel that may give rise to further delay in the applicant returning to India, however there are some allowances in legitimate circumstances for relevant bridging visas to extend. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant however provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
67. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 he also may not be granted a further visa for 3 years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12. However, those are also intended and legitimate consequences of cancellation.
68. The Tribunal gives this consideration neutral weight.

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

69. The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to India the applicant said he did not.
70. There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child or that it would be in contravention of the Convention Against Torture.
71. The Tribunal gives this consideration neutral weight.

Any other relevant matter

72. The applicant indicated that he is a genuine student with significant ties to India as his mother is alone and he has assets there. He requested the Tribunal give him another chance so that he can study the course and return to India.
73. The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. Although it is accepted that there were events that occurred outside the applicant’s control, the Tribunal is also mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, that the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.
74. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

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

Gabrielle Cullen
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.

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^[1] As raised with the applicant via s 359AA at hearing.