2108793 (Migration)

[2023] AATA 187

2108793 (Migration) [2023] AATA 187 (3 January 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Biwek Thapa (MARN: 0747526)

CASE NUMBER:  2108793

MEMBER:Penelope Hunter

DATE:3 January 2023

PLACE OF DECISION:  Sydney

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

Statement made on 3 January 2023 at 12:24pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in studies – outstanding education debts – unsatisfactory course progress – charges for several offences withdrawn – Apprehended Personal Violence Order – employment continued – mental health issues – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 48, 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202

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

1. This is an application for review of a decision dated 30 June 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 on the basis that the applicant had not complied with a condition of his visa, and grounds for cancellation arose under s 116(1)(b) of the Act. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled. The applicant has provided to the Tribunal a copy of the decision record of the delegate.

3. The applicant appeared before the Tribunal on 9 November 2022 to give evidence and present arguments. The applicant was represented in relation to the review and his representative participated in the hearing. The applicant also was accompanied by a support person, [named].  

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   Non-disclosure certificate

5. Contained within the Department file was a certificate issued by the Department pursuant to s 376 of the Act on 15 July 2022. Under s 376 of the Act, a delegate of the Minister may certify in writing that the disclosure of any matter contained in the document or of the information would be contrary to public interest.

6. A copy of the certificate was sent to the applicant on 25 October 2022. The applicant was invited to comment on the validity and provide any submissions by 2 November 2022. The Tribunal did not receive any information from the applicant by the time stipulated disputing the validity of the certificate.

7. At the hearing the applicant and his representative confirmed that the validity of the certificate was not disputed. The Tribunal finds that the certificate had been signed and dated by the issuing officer, it clearly identified the documents to which it related and set out the reason or the confidentiality being that the provider had not consented to the disclosure. In the particular circumstances  the Tribunal is satisfied that the certificate is valid.

8. On 25 October 2022, the Tribunal also wrote to the applicant in accordance with s359A of the Act and put to him adverse information for comment. The particulars of the information were:

   There is information on the Department file that you were charged with several counts of sexual intercourse without consent arising from incidents occurring between [specified days in] April 2020. These charges were ultimately withdrawn [in] November 2020. However, you remained subject to an Apprehended Personal Violence Order between [August] 2020 and [August] 2022.

   The applicant was further advised that the information may be relevant to the review because it may weigh against the exercise of the discretion not to cancel the visa. Consequently this may form a reason or a part of a reason for affirming the decision under review.

9. The applicant provided a response to the Tribunal on 2 November 2022, and claimed that he had to go through immense psychological distress and mental torture due to false and serious charges laid on him. He was held captive for the night he was arrested and then released on bail and it was the most traumatic experience in his life. He further claimed that could not focus on his study as the charges affected his mental capacity to think and decide. Where relevant the Tribunal has set out further the information provided by the applicant in the statement and also at the hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.

    Did the applicant comply with Condition 8202?

11. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

    ·be enrolled in a full time registered course: 8202(2)(a)

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

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

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

12. The applicant is [an age] year old citizen of Nepal who arrived in Australia [in] February 2019, on a subclass 500 student visa, valid to 15 March 2022. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.

13. The delegate sets out in their decision record, a copy of which the applicant has provided to the Tribunal, that on 17 May 2021, the applicant was issued with a Notice of Intention to Consider Cancellation under s 116 of the Migrations Act. The NOICC set out information obtained from the applicant’s Provider Registration and International Student Management System (PRISMS) records which documented that he had not been enrolled in a course of study since 21 January 2021 and invited comment from the applicant as to whether a grounds for cancellation existed. The Tribunal is satisfied that the notice was validly issued.

14. The applicant responded to the Department on 2 June 2021, and did not dispute the cancellation of his enrolment in the [Course 1] at [College 1] on 21 January 2021. The applicant claimed that he was unaware of the development because he had problems with his email.  The applicant submitted to the Department a new Confirmation of Enrolment (CoE) in a [Course 1] at [College 2] with course dates from 12 July 2021 to 7 July 2024, created on 20 May 2021.

15. The delegate had regard to the applicant’s PRISMS records and noted not only that the applicant had not been enrolled in a registered course since 21 January 2021, but that it was recorded in PRISMS that his education provider had attempted to contact him in November 2020 to alert him as to outstanding fees. The delegate considered the response of the applicant and determined that the grounds for cancellation existed.

16. In his statement, also dated 2 November 2022, the applicant does not dispute that his enrolment at [College 1] was cancelled on 21 January 2021, or that he did not obtain a further enrolment until 20 May 2021 after he received the NOICC from the Department. The applicant conceded that there was a four month gap in his enrolment from 21 January 2021 to 19 May 2021.

17. The letter of visa grant dated 28 February 2019, which the applicant has submitted to the Tribunal, set out that his visa was subject to a number of conditions including condition 8202. The applicant confirmed at the hearing that he was aware of this condition and the requirement that he maintain enrolment while the holder of a student visa.

18. Also at the hearing the applicant did not dispute the facts as set out in the delegate’s decision record. He confirmed there was a four month period between 21 January 2021 to 19 May 2021 when he was not enrolled in any registered course of study and the Tribunal finds accordingly. The applicant also did not disagree that this was a breach of a condition of his visa grant. It follows that the Tribunal is satisfied that the applicant has not complied with condition 8202(2)(a).

19. As the applicant has failed to comply with the visa condition, the ground for cancellation in s 116(1)(b) does arise.

    Consideration of the discretion to cancel the visa

20. 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 Procedural Instruction ‘General visa cancellation powers’.

21. In addition to his statement of 2 November 2022 and his evidence at hearing, the applicant has provided, and the Tribunal has considered the following additional documents:

    i.A copy of the applicant’s resume.

    ii.Letter of student visa grant dated 28 February 2019.

    iii.Identity documents for the applicant including passport extract and birth certificate.

    iv.Copies of the applicant’s overseas qualifications.

    v.The applicant’s previous CoE in the [Course 1] at [College 1] commencing on 19 June 2020.

    vi.Letter of offer to the applicant dated 22 April 2021 from [College 2] in the [Course 1] starting on 3 May 2021.

    vii.The applicant’s CoE in the [Course 1] at [College 2] commencing on 12 July 2021.

    viii.Partial transcript of the applicant’s study in Australia at [College 2] in [Course 1] in 2021.

    ix.Letter to the applicant from [his representatives], dated [in] November 2020.

    x.A letter of offer dated 23 October 2022 in a [Course 2] from the [College 3].

    xi.A letter of support from the applicant’s sister, [Sister A], dated 8 November 2022 and copy of family relationship certificate.

    xii.[Bank 1] statements for the period 31 December to 30 June 2021

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

22. The purpose of the applicant’s travel and stay in Australia was to undertake study in the Higher Education Sector. The applicant had initially proposed to undertake study in a [Course 3] at [College 4] commencing on 4 March 2019. The Tribunal accepts that his travel to Australia in August 2017 was for the purpose of study. The applicant did not complete this course. He told Tribunal that he enrolled in three semesters at [College 4] and passed seven subject. It was of concern for the Tribunal, as identified to the applicant at hearing, he has not provided any evidence of these studies to corroborate this claim.

23. In her letter of support, the applicant’s sister, [Sister A], sets out that the course at [College 4] was not interactive and boring for the applicant to study. In his statement to the Tribunal the applicant claimed that he changed course with friends from [College 4] and thought that a different course might intrigue him and keep his mind off his criminal charges. The applicant enrolled in a [Course 1] at [College 1] commencing on 19 June 2020. He told the Tribunal that he did not pass many subjects in this course and has submitted that with very little background in [this field] he found it very hard and the course was different to what he thought it would be. It was the enrolment with [College 1] which was cancelled on 21 January 2021.

24. On 20 May 2021, the applicant again enrolled in a [Course 1] with [College 2] commencing on 12 July 2021. The partial academic transcript he has submitted indicates that the applicant passed his first trimester courses. He said that he again enrolled in [this subject] to make his parent’s proud. The applicant told the Tribunal that he was refused permission to engage in further study when the delegate cancelled his visa on 30 June 2021. He told the Tribunal that he had applied for this condition be removed from his bridging visa in shortly before the Tribunal hearing.

25. The applicant has presented to the Tribunal and offer of enrolment in a [Course 2] and proposes a further three years of study. He told the Tribunal he came to Australia for better qualifications. When asked whether he could undertake [similar] degree in Nepal the applicant said that his father had served in [an agency] and he had the opportunity to study high school in India, his father had now retired and he could not continue his studies in India. His parents thought that he should complete his higher education in Australia.

26. The applicant’s initial student visa has expired. In the two years in which he studied prior to the cancellation decision the applicant has not provided any evidence of course progress It is not the case that the applicant wishes to remain in Australia to complete studies he has partially undertaken, he is now proposing an entirely new course of study at a similar cost per year to his previous two years of study. While it is accepted that the applicant would prefer to obtain his qualification in Australia, the Tribunal is not satisfied that the applicant is unable to study a [Course 2] in his home country. The applicant also indicated that if his visa was refused he may consider studies in a third country. The Tribunal is of the view that there are other study options available to him.

27. 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.

28. The Tribunal gives this this discretionary factor no weight in favour of the applicant.

    The extent of compliance with visa conditions

29. The applicant did not comply with condition 8202(2) and was not enrolled in a registered course of study from 21 January 2021 to 19 May 2021. This has given rise to the ground for cancellation, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa.

30. Although there is no other evidence of non-compliance, considering the period of time the applicant was not enrolled in a registered course of study prior to the date of cancellation, 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)

31. The applicant has claimed that he wishes to make his parents proud by returning home with an Australian degree. His sister, [Sister A], suggests that it would be a social embarrassment for him to return to Nepal without completing his education, that it would create further mental hardship for the applicant and have a negative impact on his self-esteem.

32. There is no medical evidence before the Tribunal that as to any psychological impact on the applicant that the Tribunal could have regard in considering hardship. The Tribunal is satisfied that the applicant still has study options available to him in his home country. The Tribunal accepts that the applicant would be disappointed if he was unable to complete a degree in Australia. It is also accepted that he may experience some social embarrassment and he would feel that he had disappointed his parents, and this would be a degree of hardship. Yet the applicant also confirmed that his family now all know that his visa was cancelled and they have maintained their emotional and financial support for him. As to his future career, the applicant claimed that he wanted to work in [a specified occupation] in a good company. It is not demonstrated that he could not achieve this goal through studies in [related Course 2] in Nepal or another country of his choosing.

33. As set out above is not the case that the applicant wishes to completed studies he has commenced. The applicant is proposing a new enrolment and has changed to his third qualification at his fourth institution in Australia. Having changed discipline it is not demonstrated that the applicant will obtain a financial benefit and be able to transfer course credits and reduce the costs of his studies. Nor will the applicant have lost the benefit of studies he has already paid for. In these circumstances a financial hardship is not demonstrated. Although the applicant claims his parents will support the cost of a further higher education degree it is noted that the applicant discussed with the Tribunal that he still has outstanding debts for course fees to his previous education providers.

34. The Tribunal gives this consideration low weight in favour of the applicant.

    Circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. 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

35. The applicant told the Tribunal at the hearing that the reason he ceased studying was because he was going through a lot of mental pressure and trauma due to the charges that were placed on him [in] April 2020. The applicant claimed to the Tribunal that they were false charges, he claimed that even after they were withdrawn in November 2020 he was still so stressed he was unable to focus on anything, including his studies. He said that he was not aware of his situation at the time, and by this he meant that he was not aware that his CoE had been cancelled. He said that he was not checking his emails and later on he found out that his storage was full so was also not able to receive emails. The applicant said that he only became aware that his CoE was cancelled when he received the NOICC from the Department in May 2021.

36. The Tribunal questioned the applicant as to whether he was attending classes between January 2021 and May 2021. He said that classes were online during this period due to the pandemic. When asked if he was participating the applicant said that he was not participating regularly because of the charges that were put upon him. Even though they had been withdrawn the previous year he said he was not focusing on studies and skipped a lot of classes. He was thinking of starting again and applied for the same course in a different college. The Tribunal notes the offer letter dated 22 April 2021 from [College 2] he has submitted.  Then he received the notice from the Department and he thought that once he showed them that he had re-enrolled he would be able to keep his student visa. The applicant said that he made a mistake by not engaging the assistance of a migration agent at the time.

37. The Tribunal identified to the applicant that it was concerned as to how he could reasonably believe that he remained in enrolled in his course until at least 19 May 2021 when the evidence is that it was cancelled by the education provider in January 2021. Under questioning the applicant confirmed that he did not have any interaction with his education provider between January and May 2021. When asked if he was paying fees the applicant said that he was not. It was put to the applicant that it was not just a matter of him missing an email that led to the cancelation of his course, as it did not appear that he was participating at all or paying fees. The applicant did not acknowledge his role in the enrolment cancellation and only offered again that he was still going through a lot of mental trauma at the time due to the charges. The applicant was asked when he stopped participating in his course, and he confirmed that it was prior to December 2020.  

1. The applicant was asked whether he sought any assistance from his education provider, advised them of the charges or the problems that he was having, or sought a deferral. The applicant responded that he did not seek assistance from anyone.

2. Also when questioned the applicant said that he did not seek any medical assistance or psychological assistance for his condition. He said this was because of the cost and he thought that he would just stay home by himself. It is noted that as a requirement of his student visa the applicant was to hold health insurance. While there may have been a limit as to the psychological assistance his health insurance covered, the Tribunal not persuaded costs would have impacted upon him seeking help from a GP or any medical assistance whatsoever. The Tribunal also raised with the applicant the concern over the lack of any documentation as to the mental issues he claims were the reasons that led to his period of non-enrolment and that he could not study.

3. The Tribunal also had regard to the extract of the applicant’s [Bank 1] statement for the period 31 December 2020 to 30 June 2021, which was submitted in support of an application to reduce the Tribunal filing fees. This statement showed that the applicant continued to be engaged in employment during this time with the regular deposit of salary from [Employer 1] until May 2021, and additional deposits identified as “pay” each week from March 2021. The applicant had disclosed at the time of his visa application he had found further employment as [an employee] with [Employer 2]. The Tribunal put to the applicant for comment these records and noted that although he claimed he was not able to participate in study he appeared to be engaging in regular employment. The applicant responded that at this time he skipped a lot of work and used his annual leave. The Tribunal is not persuaded the bank records corroborate this, the regular transactions do not paint a picture of the applicant staying at home by himself. Even if his purchases were online, this would not account for regular transport costs.

4. Although the applicant was currently claiming to the Tribunal that it was the stress and mental trauma associated with his criminal charges that impacted upon his ability to study and this was outside his control. It was noted that this information was not provided to the Department. The applicant at the time instead offered the following explanation:

   (M)y COE was cancelled at the end of january 2021 which I had no idea of because my gmail was not receiving any new mails as my gmail storage was full. I got to know that my COE was cancelled at the end of march so I contacted the college to renew my COE but they denied my request. So that’s why on 22nd April I applied for the same course in [College 2] and got the offer letter on the same date but due to delay of some of my documents my COE was delayed.

   When asked to comment on the omission in his response to the Department of what he now maintained before the Tribunal to be the main reason he was not enrolled, the applicant said that he was trying to do it himself without assistance. He said that he thought that if he showed the Department that he was enrolled again his visa would not be cancelled. The Tribunal questioned the applicant as to the weight it should now place on the mental stress of the charges when the first time he had raised it in relation to the visa cancellation was in his submissions dated 2 November 2022. The applicant said that he did not tell the Department about his charges because he did not have guidance. The Tribunal further notes that in his response to the Department the applicant claimed that he was aware his CoE was cancelled at the end of March, not upon the receipt of the Department’s NOICC, as he submitted to the Tribunal. The offer letter he obtained in April 2022 for [College 2] further indicates to the Tribunal that the applicant was aware his enrolment at [College 1] was cancelled prior to be alerted by the Department.

5. The Tribunal has considered the applicant’s evidence and submissions, it is accepted that the decision as to whether or not the authorities in Australia proceeded with criminal charges against the applicant was a matter outside his control. He demonstrated the ability to seek and engage with legal assistance in relation to the charges. As was discussed with the applicant at the hearing, the decision whether or not to study appeared to be a matter within his control. When facing the charges he changed his enrolment to [College 1] because he found his initial course boring, not interactive and he sought the intrigue and distraction of something different. The Tribunal is not persuaded that the applicant was so mentally impacted that he was unable to focus on anything. He confirmed for the Tribunal that [College 1] did not raise with him any issues of attendance or unsatisfactory course progress. Although the applicant disputes this, the Tribunal is satisfied that it was a matter within the control of the applicant not to seek medical assistance for the condition he claimed was severe. It was also within the control of the applicant not to seek assistance from his education provider. The applicant did accept that it was his decision not to seek support or discuss the charges with his family or his friends. He also conceded that his family could have assisted him with costs, including the costs of medical treatment. The Tribunal is not persuaded that any of these circumstances were outside his control.

6. It is also noted that the time of the claimed greatest impact of the stress and mental anguish arising from the charges that the applicant faced arose following them being withdrawn in November 2020. In the absence of any corroborative medical evidence the Tribunal does not accept that delayed impact of the charges was so catastrophic on the applicant that he lost the capacity to make decisions and could not control whether he studied online or not, checked his emails, engaged with his course provider or was that he unaware of the whether he was complying with his visa. There are discrepancies in the evidence before the Tribunal as to when the applicant became aware of his course cancellation, and it is considered that he could not reasonably maintain that his lack of participation in his studies or payment of fees would not have an impact on his enrolment. The Tribunal is also not satisfied that he did not continue to engage in employment and missed work, and just stayed at home by himself as he claimed.

7. Further, although during the period of his non-enrolment the applicant claims to be so incapacitated that it was outside his control, yet without any treatment or intervention he was able to resume studies once the matter is brought to his attention by the Department. His partial transcript from [College 2] records also he was able to study successfully in the few weeks he was enrolled before the cancellation decision.

8. 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 charges that he faced. It also accepts that he believed them to be false. The Tribunal has also considered the applicant’s age and his separation from his family in Nepal. However, 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.

9. Therefore, the Tribunal only attributes them low weight in favour of the applicant.

   Past and present behaviour of the visa holder towards the department

10. There is no evidence that the applicant has been uncooperative in his dealings with the Department in the past. The Tribunal gives this factor some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s 140

11. The applicant confirmed for the Tribunal that he was 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. Accordingly, 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 and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

12. If the applicant no longer had a valid visa he would be required to depart Australia. He would further be subject to s 48 of the Act which would limit his options for returning to Australia or applying for other visas. The cancellation may also restrict the applicant’s future ability to  make a valid application for any visa. The applicant repeated that he really wished to undertake education in Australia and he did not wish to wait three years. However, those are also intended and legitimate consequences of cancellation.

13. If the visa is cancelled the applicant would continue to hold a bridging visa for a short time to allow him to finalise his affairs before he departed. If the applicant himself did not take steps to return he could face consequence such as detention and removal from Australia. Upon questioning by the Tribunal the applicant said that if the visa was cancelled and he had exhausted all avenues of review he would voluntarily depart Australia. He indicated that he does not have any intention to become unlawful. In these circumstances, on his evidence, it is therefore unlikely that the applicant would face detention and removal.

14. The Tribunal gives this consideration neutral weight.

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

15. The applicant did not identify any fears of returning to Nepal. He has not children that would be impacted by the cancellation decision. 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.

16. There is no weight attributed to this factor.

    Any other relevant matters

17. The applicant while in Australia has been charged with several counts of sexual intercourse without consent arising from incidents alleged to have occurred between [dates in] April 2020. The Tribunal accepts that the charges were withdrawn against the applicant [in] November 2020, and but that prior to their withdrawal an Apprehended Personal Violence Order was put in place against the applicant between [August] 2020 and [August] 2022. The applicant claims that the charges were false and the Tribunal accepts that he maintains this position. There is insufficient evidence before the Tribunal to support a finding that the Australian police or the complainant manufactured charges against the applicant. It is accepted that the charges were withdrawn, and it is accepted that there is no evidence before the Tribunal that the applicant has any record of criminal convictions, or that there is proof of any matters that would be of concern to the Australian community.

18. The Tribunal places no adverse weight on these matters and the Tribunal has not had regard to it in assessing whether the visa should be cancelled.

19. Conclusion

20. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. 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 does not accept that the evidence demonstrates this extended to his ability to maintain enrolment. The Tribunal has placed a low weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. 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. It is accepted that the applicant wishes to remain in Australia, yet the for the reasons set out above, it is not demonstrated that he has a compelling need for him to do so, nor that there is a degree of hardship that would weigh in favour of the visa grant. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

21. Overall, the Tribunal finds, considering the material before it as a whole, the that the visa should be cancelled

    DECISION

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

    Penelope Hunter
    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.