1935449 (Migration)

1935449 (Migration) [2020] AATA 2389 (27 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1935449
MEMBER:Michael Biviano
DATE:27 February 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 27 February 2020 at 9:20am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – visa requires level 7 AQF – unsatisfactory course progress – health conditions – opportunity to fix enrolment – did not maintain enrolment at level 7 or higher – no jurisdiction with respect to other applicant – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 348
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202(2)(b)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 December 2019 made by a delegate of the Minister for Home Affairs to cancel the first named applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa of the first named applicant (the applicant) on the basis that cl.(2)(b) of condition 8202 of her visa was breached as she was not enrolled in a registered course at the same level or a higher level than the registered course in relation to which the visa was granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicants appeared before the Tribunal on 7 February 2020 to give evidence and present arguments. [Ms A], a friend of the applicant, also gave evidence in support of the applicants to the Tribunal.
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Regulations. If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
a.be enrolled in a full-time registered course: 8202(2)(a);
b.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: 8202(2)(b);
c.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and
d.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was in breach of cl.(2)(b) of condition 8202 of her visa as she was not enrolled in a registered course at the same level or a higher level than the registered course in relation to which the visa was granted, for the period from 5 April 2017 to the cancellation of the visa on 9 December 2019.
The decision record of the delegate of the Department of Home Affairs (the Department) on 9 December 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa, which was granted on 3 February 2017, and the reasons for the cancellation of the visa (Decision Record).
The applicant filed with the Tribunal her application on 16 December 2019 the following supporting documentation:
(a)Passports for the applicants;
(b)Confirmation of Enrolment (COE) [number] to study a Certificate III in Early Childhood Education and Care at [College 1] from 8 April 2019 to 5 April 2020;
(c)COE [number] to study a Diploma in Early Childhood Education and Care at [College 1] from 6 April 2020 to 3 October 2021; and
(d)NIB Confirmation of Health Cover.
On 28 January 2020 the applicant prior to the hearing filed further supporting documentation in support of her review of the decision of the Department:
(a)Statutory Declaration of [Ms A] made 24 January 2020;
(b)Letter from [College 1] dated 12 November 2019, confirming the applicant’s enrolment in Certificate III and Diploma of Early Childhood Education and Care;
(c)Memorandum of Fees from [Medical provider]; and
(d)Ultrasound picture.
On 4 February 2020 the applicant filed further supporting documentation in support of her application reviewing the decision of the Department:
(a)Office of the Village Development Committee Verification of Income;
(b)Written Submission of the applicant (Submission);
(c)Letter of the Department of Home Affairs dated 24 August 2018, with a decision not to cancel the visa;
(d)Letter from Office of the Village Development Committee; and
(e)Marriage Certificate dated [October] 2018.
The hearing was conducted on 7 February 2020. The applicant was given an opportunity to file any supporting documents arising out of her evidence at the hearing and on 14 February 2020, the applicant filed a further submission with supporting documentation including:
(a)[College 2] Certificate of English dated 23 June 2017;
(b)Pharmacy Script, Receipt and Medical Certificate of [Dr B] dated 13 February 2020;
(c)Receipt and Medical Certificate of [Dr B] dated 13 August 2019; and
(d)Letter of the Department of Home Affairs dated 10 July 2018, with a decision refusing visa application dated 11 May 2018.
Prior to coming to Australia the applicant completed a Certificate of Nursing in Nepal. She also undertook IELTS exams and gained an overall mark of 5.5 while in Nepal.
At the time the visa was granted on 23 January 2017, it was granted on the basis that she was to be enrolled in a suite of courses including the [Foundation Year Standard Program] at [College 3] and the Bachelor of Health Science at the [University], which is a course at level 7 of the Australian Qualification Framework (AQF).
The applicant gave evidence that she knew at the time of the grant of the visa that she was required to remain enrolled in a course at level 7 or higher of the AQF. Further, a student who obtains a student visa is expected to know and be aware of her visa conditions and comply with those conditions. Ignorance of the visa conditions is no excuse for a breach of the visa.
The applicant claimed that while studying [Foundation Year], her cousin’s sister told her that the Bachelor of Health Science was a general course which had no career pathway and she recommended that the applicant enrol in a course that lead to a career path such as nursing. The applicant decided to change career path and study a Diploma of Nursing and she claims that she enrolled in that course at [College 4] in April 2017 and she ceased her studies at [College 3] and her enrolment in the [Foundation Year] and the Bachelor of Health Science was cancelled. The Decision Record confirms that on 4 April 2017, her enrolment in the bachelor’s degree ceased. The applicant confirmed in evidence that she was aware that by enrolling in a course which was merely a diploma, which is at level 5 of the AQF, she was in breach of her visa in not maintaining an enrolment at level 7 of the AQF or higher.
The Tribunal notes that the applicant lost her enrolment in the bachelor’s course within three months of coming to Australia, without commencing study in that course, which is consistent with the applicant having come to Australia with no intention to study a course at the bachelor’s level but with the intention of studying lower level courses.
The applicant denies this was the case but her explanation to change course without seeking professional advice and change her field of study merely on the recommendation of a distant relative is not a credible explanation for changing her course of study so quickly and breaching her visa conditions. The applicant claims that she was enrolled in the Diploma of Nursing in conjunction with undertaking a Certificate of English for Academic Purpose (EAP) at [College 2].
The applicant claims that she enrolled in a Diploma of Nursing at [College 4] but on commencement the education provider closed down and she lost her enrolment.
The applicant claims that she was unable to enrol in a bachelor’s course because she had not received the minimum result of 6.0 on the IELTS course which was required to enrol in a degree. The applicant completed a certificate of achievement for EAP at [College 2] which was issued on 23 June 2017. The applicant claimed the course at [College 2] was for 6 months, but it is unclear on the certificate provided that was the case. However the applicant conceded that she struggled to get enrolled after completing the Certificate of EAP.
The applicant claimed she was depressed about her situation. She moved to Sydney. She gave evidence that she needed a higher IELTS score to enrol in a bachelor’s degree and she sought advice from an education consultant who told her that she could re-sit the IELTS exam, but that would delay her studies or she could enrol in a Diploma of Information Technology and Advanced Diploma of Network Security at [College 5]. Such courses were a different career pathway to the nursing and medical courses she had considered.
The applicant in the Submission confirmed that on 7 May 2018, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of the visa. Within a few days of receiving the NOICC, the applicant took steps to get enrolled in a registered course of study. After considering her response to the NOICC, the Department decided not to cancel her visa.
The applicant gave evidence which was supported by the Decision Record that on 11 May 2018 she enrolled in both the Diploma of Information Technology and Advanced Diploma of Network Security at [College 5] which were courses at level 5 and level 6 of the AQF. In October 2018, while studying the Diploma of Information Technology she got married.
The Tribunal notes the applicant’s evidence that when she obtained the new enrolment in the Diploma of Information Technology in May 2018, she applied to the Department of Home Affairs on 11 May 2018 for a new study visa, which was refused. This was evidenced by the Department’s letter dated 10 July 2018.
The applicant gave evidence that she passed all four subjects that she studied in the first semester and the second semester. However she claims that in February 2019 she lost focus and had mental tension. She was vomiting regularly and not feeling well. She later discovered that she was pregnant. She spoke to the counsellor about her condition and position at the school. She had a very difficult decision to make whether to give birth or terminate the pregnancy. She decided with her husband that they would focus on their studies and they decided to terminate the pregnancy. However the pregnancy took a toll on the applicant’s studies and she gave evidence that she failed two of the four subjects that she studied in her third semester. The Decision Record confirms that the education provider cancelled those enrolments on 7 March 2019. The applicant claims that the enrolment ceased by reason of unsatisfactory course progress.
The applicant gave evidence which was supported by the COEs provided to the Tribunal that on 5 April 2020 she enrolled in a Certificate III in Early Childhood Education and Care and a Diploma in Early Childhood Education and Care at [College 1]. Those courses are at levels 3 and 4 of the AQF. The applicant is expected to complete the Certificate on 5 April 2020 and the Diploma on 3 October 2020.
[Ms A], who studied with the applicant, gave evidence that in or about April 2019, the applicant had confided in her about the pregnancy and the difficult decision to terminate it. The Tribunal accepts her evidence.
The applicant gave evidence that she is progressing well with her studies in the Certificate III course and she wishes to complete her studies and return home so that she can work in childcare and establish her own childcare centre in due course.
On 7 November 2019, the applicant received an NOICC of her visa.
On 13 November 2019, the applicant provided to the Department a response by email that she was studying at the Diploma level and foreshadowing that may allow her to study a higher course on completion of the Diploma. The email contained the COEs for the Certificate III and Diploma of Early Childhood Education and Care and a letter from the [College 1] confirming that the applicant was enrolled in those courses. The email stated, omitting formalities:
‘I apology for delay responding to your mail. I confirm that I'm studying in [College 1] for diploma course. I have talked to its package In college for Higher education they will issue after I step in diploma course. I have attached my current enrolment letter as a reference.
For further relative information I have nominated [Mr C] as my agent.
Meantime please kindly advise me or my agent if you need any further information.
thank you so much for your consideration in advanced and looking forward to hearing the positive news from you soon.’
On 9 December 2019, the delegate cancelled the visa.
The applicant’s evidence confirmed that from 5 April 2017, she has not been enrolled in a registered course at level 7 of the AQF or higher.
As at the date of the hearing, the applicant is not enrolled in a course at level 7 of the AQF or higher, and if she continues to study the Certificate III of Early Childhood Education and Care, and continues with the future enrolment of the Diploma of Early Childhood Education and Care, as contained in the COEs, then the outcome would be that the applicant would remain in breach of her visa even if the cancellation of the visa was set aside, as she would be enrolled in a course that was not at the same or a higher level than a level 7 course, and she would continue to remain in breach of condition 8202(2)(b) of the visa.
The applicant conceded in evidence that she has not been enrolled in a course at level 7 of the AQF or higher from 5 April 2017 to the cancellation of the visa on 9 December 2019, being a period of more than two years and eight months, and she was enrolled in lower level courses for a significant period of that time. By reason of not being enrolled in a course at level 7 course of the AQF or higher for that period of time, she did not meet condition 8202(2)(b) of her visa. As the applicant was not enrolled in a course at levels 9 or 10 of the AQF, the exemption at condition 8202(3) of the visa does not apply to the applicant and she is required to be enrolled in a course at level 7 of the AQF or higher.
On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted, for the period from 5 April 2017 to 9 December 2019. Accordingly, the applicant has not complied with condition 8202(2) of her visa. As this was a condition that was attached to her visa, the applicant therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b) of the Act.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel or to remain in Australia
The applicant gave evidence that she came to Australia to study and undertake the courses as discussed above.
As discussed above, the applicant has generally been continuously enrolled in courses and studied since her arrival in Australia.
There is no doubt she came to Australia for the purpose of studying in Australia.
As discussed above, since coming to Australia she has enrolled in but unsuccessfully studied the following courses:
a.Bachelor of Health Science at [University], which she did not commence and discontinued of her own volition to study a lower level course - a Diploma of Nursing; and
b.Diploma of Information Technology at [College 5].
Usually the applicant’s poor academic results are indicative of a student who has not applied herself and does not intend to genuinely study. The reasons given for her failed studies in the Diploma of Information Technology are understandable and relate to her medical condition, and do not reveal an intention not to genuinely study here in Australia.
The applicant intends to continue studying in Australia in the future. The applicant is enrolled to complete the Certificate III and Diploma of Early Childhood Education and Care. As at the hearing she had only three months left to complete the Certificate III course.
The applicant gave evidence that she is very keen to return home with her qualifications, as it will provide her with an opportunity to work in the childcare field back home and establish her own business.
Having regard to the applicant’s evidence and her conduct during her stay in Australia, in that she has continued to study during the time she has been in Australia, the Tribunal accepts that the applicant has travelled to Australia for the purpose of studying, she has studied here and she intends studying in the future.
However, the applicant was not enrolled in the appropriate level of course for a period of more than two years and eight months, but the Tribunal accepts that the applicant has changed courses because of her failed studies in the Diploma of Information Technology and the closure of the school in the Diploma of Nursing which lead to a gap of at least six months in her studies between November 2017 and May 2018. The applicant was generally continuously enrolled in a registered course, as set out above, although not at the appropriate level for a very long period of time of at least 32 months. For these reasons, the Tribunal gives these matters some weight towards the visa not being cancelled.
The extent of compliance with visa conditions

The applicant was not enrolled at the appropriate level course for the period from 5 April 2017 to 9 December 2019. Therefore, the applicant has not complied with condition 8202(2) for a very long period of time. The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for not being enrolled at the appropriate level of the AQF.
As discussed above, the applicant’s non-compliance with the visa condition relates to her decision to not pursue her studies in the Bachelor of Health Science, and then enrolling and not completing numerous low level courses. Whilst the applicant claims that her studies in the Diploma of Nursing came to an abrupt end due to the school closing, the applicant has had substantial opportunity to sort out her enrolment to ensure that the applicant is compliant with her visa.
The applicant created the breach by withdrawing from the Bachelor of Health Science course and not ensuring that she would be able to enrol in a course at level 7 of the AQF or higher. The applicant gave evidence that she was aware from her IELTS scores, she would struggle to get enrolled in a course at bachelor level. In such circumstances, it could not have been a surprise that she would not be able to get an enrolment at bachelor level without having obtained a further qualification from Australia.
Whilst the applicant has applied for a new student visa, that application was refused and not challenged by the applicant.
Whilst the Tribunal accepts that an applicant may wish to change courses and career paths, the applicant was obliged to meet her visa conditions and it was her responsibility to maintain enrolment in the appropriate level of course.
The applicant in evidence confirmed that she knew that she was in breach of her visa.
While the Tribunal understands the applicant’s reasons for not successfully completing the Diploma of Information Technology regarding her medical condition and her pregnancy, they do not go to the issue of being compliant with the visa, where the applicant was aware that she would be in breach of her visa by not enrolling in a course at level 7 of the AQF or higher.
The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with her visa.
Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a course at level 7 of the AQF or higher and she chose to withdraw from that course and enrol in lower level courses.
The Tribunal finds that the reasons for not being enrolled in a course at the appropriate level of the AQF were the responsibility of the applicant.
Having regard to the very long period of the breach, the reasons for losing the enrolment in the Bachelor of Health Science course, and that the applicant was responsible for not being enrolled at the appropriate course level, the Tribunal gives these matters substantial weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.
The applicant gave evidence that if her visa was cancelled it would cause her and her husband a substantial degree of hardship as:
a.Her family don’t know that she is married to her husband and she would have to reveal that fact which is problematic, because they would not approve of him as he is of a lower caste. She claims that she would need to make a choice whether to side with her husband or her family;
b.Her family don’t know about her visa issues and she would rather return home with a qualification and without visa problems; and
c.It would be a blow to her family who have funded a substantial part of her education and she has not achieved any qualifications.
Undoubtedly if the applicant were to return home after being in Australia for nearly three years without obtaining a qualification, it would be a waste of her three years in Australia and it would be difficult to return home and gain employment. The applicant gave evidence that if she was required to return home, she would seek to undertake childcare courses back home, to supplement her nursing certificate from Nepal, so that she could pursue her plans of operating a childcare centre.
The Tribunal notes that apart from English courses, the applicant has not completed any tertiary studies courses and she will return home to Nepal empty-handed if the visa is cancelled. Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and her family and her husband, who have funded her studies, if the visa is cancelled, in the cost of tuition fees that have been paid for the last three years. Most of the costs that have been incurred, save for the Certificate III course are predominantly lost whether she undertakes any further study in Australia or not.
The Tribunal also finds that there is nothing preventing the applicant studying back at home to obtain her childcare qualifications.
Whilst the Tribunal has some sympathy with the matters relating to the relationship difficulties between the applicant, her family and her husband, they are matters which will need to be dealt with by those parties at some point in time and they are not matters that are relevant to the cancellation of the visa.
In any event, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately, the responsibility regarding enrolment rests with the student.
The applicant knew and was aware that by not being enrolled in a registered course of study at the appropriate level she would be in breach of condition 8202 and that her visa may be cancelled. However the applicant claims that that she was unable to enrol in a course at level 7 of the AQF or higher.
The primary responsibility of the applicant under the visa is to be enrolled and undertake a registered course at a level appropriate to her visa. The applicant was not enrolled in a registered course at an appropriate level for a period of 32 months, which is a very long period of time to be in breach of the visa.
The Tribunal has considered the applicant’s explanations for why she was not enrolled in a registered course at a level appropriate to her visa for such a very long period of time and therefore in breach of condition 8202(2). The Tribunal does not accept those circumstances were beyond her control, or circumstances that provided a reasonable explanation for not being enrolled at the appropriate level of course for such a long period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
The cancellation of the visa does affect the visa of her husband, who will be required to return home. The applicant’s husband has studied in Australia and completed his studies in [Subject] and works at a [Workplace].
The cancellation of the visa will affect the applicant’s husband, and he will be required to return to Nepal and deal with the applicant’s family. The cancellation of the visa will cause him substantial inconvenience however it will not impact his studies in Australia. The Tribunal gives this matter marginal weight towards the visa not being cancelled.
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
If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of further visa.
Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next three years.
However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.
The applicant gave evidence that if the visa remained cancelled she would return to Nepal and undertake her studies there, and therefore there is no indication that she would become unlawful or be subject to detention.
Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled she would return to Nepal, and she did not give any reasons as to why she could not return to Nepal, and she has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
The Tribunal considers that it is a relevant matter as to whether the applicant is able to obtain enrolment in a registered course at an appropriate level to her visa. If the applicant is unable to obtain enrolment in a course that is at an appropriate level to her visa it will weigh towards her visa being cancelled, as there would be little utility to setting aside the cancellation of the visa if the applicant would remain in breach of her visa condition.
The courses that the applicant is currently enrolled in are the Certificate III in Early Childhood Education and Care, which is a course at level 3 of the AQF, and the Diploma of Early Childhood Education and Care which is a course at level 5 of the AQF.
If the applicant undertakes those courses, without any other enrolment, she will not be compliant with the visa condition of maintaining an enrolment at level 7 of the AQF or higher.
The applicant submitted that she may endeavour to seek an enrolment in a higher level course in the future, which may be compliant with the visa conditions, but there was no supporting evidence by way of letter of offer or evidence from the applicant that a university was prepared to offer her a position subject to cancellation of the visa being set aside.
In such circumstances, the Tribunal finds that on the evidence before it, the applicant will study a Certificate III and Diploma of Early Childhood Education and Care, and not be enrolled in a course at level 7 of the AQF in the near future and the applicant will be unable to obtain the necessary enrolment to be compliant with the visa for a number of months.
Accordingly, the Tribunal gives this factor marginal weight towards the visa being cancelled.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the first named applicant’s Class TU visa. The Tribunal has no jurisdiction with respect to the other applicant.
Michael Biviano
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.

[2020] AATA 2389

27 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Breach