Baig (Migration)

[2020] AATA 5995

Baig (Migration) [2020] AATA 5995 (23 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Tabish Baig

CASE NUMBER:  2001043

HOME AFFAIRS REFERENCE(S):          BCC2019/5496200

MEMBER:Wendy Banfield

DATE:23 November 2020

PLACE OF DECISION:  Sydney

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

Statement made on 23 November 2020 at 11:37am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa –Subclass 573 Higher Education Sector visa – period of non-enrolment – lack of academic progress –applicant did not comply with condition 8202– no compelling need to remain in Australia– criminal conviction– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 116, 359
Migration Regulations 1994 (Cth), Schedule 8

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 10 January 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a registered course of study as required by the conditions of his student visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 July and 29 September 2020 to give evidence and present arguments. During the first hearing the applicant requested an adjournment to a later date as he was waiting for the outcome of criminal charges against him in October. The Tribunal adjourned the hearing to consider the request and decided it appropriate to invite the applicant to a resumed hearing which took place in September. By the time of the second hearing the applicant advised the criminal case against him had been finalised.

   Background

4. The applicant is a citizen of Pakistan and is currently 26 years old. He came to Australia on 17 April 2015 as the holder of a Subclass 573 Student visa to study in the higher education sector. The applicant was enrolled in a foundation studies at Newcastle International College (NIC) during the period 29 February 2016 to 27 September 2019 and was planning to progress to a Bachelor of Engineering (later Chemical Engineering). The applicant was unable to meet the requirements for entry to a bachelor’s degree at NIC and was not enrolled to study between 27 September 2019 and 10 January 2020.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. The applicant provided the following relevant evidence in support of his application for review:

   ·     Representative’s submission dated 20 January 2020 attaching email correspondence between the applicant and NIC;

   ·     Representative’s submission dated 3 September 2020;

   ·     Death certificate in the name of Mirza Imran Baig dated 19 April 2019;

   ·     Confirmation of Enrolment (COE) for a Foundation Program at NIC dated 24 June to 27 September 2019;

   ·     Applicant’s written statement dated 28 September 2020 with attachments including current COEs;

   ·     Response to s.359A invitation to comment or respond to information dated 19 October 2020 (post-hearing).

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 (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?

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.

11. The immigration delegate found the applicant was not enrolled to study after 17 May 2019 and issued a Notice of Intention to Consider Cancellation (NOICC) on 16 December 2019. The applicant did not respond to the NOICC and on 10 January 2020 his visa was cancelled. The Department’s finding was based on the Provider Registration and International Student Management System (PRISMS) that recorded the applicant’s enrolment history. The applicant disputed the delegate’s findings regarding his enrolment. The Tribunal made inquiries with the applicant’s education provider and found he had in fact been enrolled until 27 September 2019, NIC having omitted to include the applicant’s final “stand alone” enrolment details on PRISMS. However, the applicant was not enrolled to study for three months and 14 days between 27 September 2019 and 10 January 2020.

12. During the hearing the applicant was asked if he agreed there were grounds to cancel his visa. He said there were, but then referred to the Department having based his visa cancellation on non-enrolment from May 2019 which was incorrect. The applicant believed the delegate would have made a different decision if aware he was enrolled until September 2019. The Tribunal reminded the applicant that enrolment to study is a continual requirement. According to the applicant he tried to communicate with NIC to re-enrol but he was not given the option. He said he is now enrolled in an information technology (IT) course which is what he always wanted to do. Having considered the evidence, the Tribunal finds the applicant was not enrolled in a registered course for three months and 14 days. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

13. 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’.

    ·     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

14. The applicant arrived in Australia in 2015, he has been enrolled in university foundation courses and degree programmes while holding a Student visa. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study and the Tribunal has afforded some weight in the applicant’s favour in assessing this criterion.

15. During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant said he has spent thousands of dollars at colleges in Australia and he still wants to complete studies in IT. He submitted he has enrolled in a Diploma of IT, paid the tuition fee, and has spent half his family’s fortune trying to do what his father wanted but is now taking the course he wants. He said he needs to complete something before he goes back, and he cannot study in Pakistan due to COVID-19. In addition, the applicant claimed it would be mentally stressful for him to go back to his home country at present. According to the applicant he has just started a Diploma course that ends in 2021 and wants to take an advanced networking course after that for a further 12 months. The applicant claimed he is the oldest son in his family and after his mother passed away his father has high hopes for him, and his siblings look up to him. He said he cannot face them if he must return without completing anything.

16. The Tribunal considered the applicant’s evidence but is not satisfied prior payment of tuition fees for courses he did not complete amount to a compelling need for the applicant to stay in Australia. The Tribunal weighed the applicant’s other assertions of family expectations and personal stress as well as concerns about COVID-19 affecting his ability to study in Pakistan.  While it is understandable the applicant’s father may be disappointed and the applicant himself may feel some stress, according to the evidence he is no longer pursuing the degree course he claimed his father wanted. The applicant is intending to study IT and has not provided any evidence why he could not pursue qualifications in that field in Pakistan. It is accepted COVID-19 may have an impact but the Tribunal considers this is likely to be a temporary impediment. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.

    ·     the extent of compliance with visa conditions

17. There is no evidence before the Tribunal that the applicant has not complied with other visa conditions; he indicated he is now enrolled and has health insurance and has only worked for a few hours a week in the past. The Tribunal has taken this into account, however, failure to maintain enrolment and engage in a course of study is a fundamental breach of a student visa and weighs against the applicant in this case.

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

18. In response to an invitation to comment about any hardship that may be caused by his visa being cancelled, the applicant submitted his father and siblings will be affected if he does not complete studies in Australia. He said since coming to Australia he has received financial support from home and he and his family will be devastated if he returns empty handed. The applicant claimed his father now accepts that he will not be pursuing engineering, however, he is not aware of the visa cancellation because the applicant considers it too stressful to tell him.  The applicant said his brother is planning to come to Australia to study and it will be hard for him to live in Australia alone as he is too young.

19. The Tribunal does not accept the applicant’s brother’s plans to study in Australia should be considered in the Tribunal’s assessment of hardship as students in Australia should not require a family member to accompany them and that is not the purpose of the applicant holding a Student visa. Nevertheless, the Tribunal is satisfied the applicant will not be able to continue studying or residing in Australia if his visa is cancelled and he will suffer some degree of hardship. This is especially the case since he has not completed his education as planned. The Tribunal gives some weight in the applicant’s favour when assessing this criterion.

20. The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. The Tribunal has assessed the claims and evidence in the applicant’s case and has accepted there will be a degree of hardship to the applicant if his visa is cancelled, however, the consequences of the legislation do not outweigh the other considerations in this case.

    ·     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

21. The applicant’s visa was cancelled because he remained in Australia as the holder of a student visa but did not continue his studies for a period of three months and 14 days. The reasons he gave for this included the death of his mother, a troubled relationship with his girlfriend, medical problems and giving up on life due to depression. He said he began to suffer from alopecia and the medication he was prescribed made him feel worse. According to the applicant he became aggressive and could no longer sleep. He said his medication destroyed his mental health and as a result he could not focus.

22. When asked about any surgery or being hospitalised in October 2019 the applicant referred to having broken his hand and suffering kidney stones. However, in his 28 September 2020 statement to the Tribunal the applicant claimed he fractured his hand in 2018. In that statement makes no mention of having had an appendectomy in 2019 or at all. Regarding kidney stones, the applicant said this was not a major issue and was treated with medication. At the hearing the applicant was asked directly if he had surgery in October 2019 and he said no, then referred to having had “laser treatment” for kidney stones. The Tribunal put to him that NIC has advised he claimed to have been unable to take his exams in 2019 because he had his appendix out. The applicant asked if the Tribunal was referring to September or October 2019 and then said he thought “that happened” in 2018 but he could not recall. After some hesitation the applicant claimed he did have his appendix out. The Tribunal found the applicant’s evidence to be unreliable on the issue of illness or medical procedures.

23. The applicant’s written statement of 28 September 2020 sets out his circumstances in Australia and addresses the issues that led to his visa being cancelled. He confirmed he commenced studying at NIC in February 2016 and claims to have passed his course except for mathematics which was a prerequisite for engineering. He says that in April 2018 he fractured his hand and returned to Pakistan for a period then in March 2019 his mother suffered an injury and passed away in April 2020 [the applicant appears to mix up 2019 and 2020 in this statement]. According to the applicant: “I became depressed and found that I had no incentive to attend university classes anymore”. Nevertheless, the applicant says his enrolment was reinstated on 24 June 2019. He sets out his treatment for alopecia including medication that he claims affected his behaviour.

24. The applicant then declares that he stalked and intimidated his former partner which led to him being arrested and criminal charges laid against him. According to the applicant he plead guilty to some charges and was acquitted of others. He was sentenced to an intensive corrections order. The applicant attached some communications with NIC and his current COEs for a Diploma of IT from 28 September 2020 to 30 January 2022 and an Advanced Diploma of Network Security from 13 March 2022 to 12 March 2023.

25. The Tribunal accepts the applicant may have faced study difficulties and issues in his personal life while holding a Student visa and residing in Australia. Nevertheless, the applicant’s response to these matters was within his control. Some of the issues the applicant encountered such as the death of his mother are life events that many people deal with. It was open to the applicant to defer his studies and return to his home country if he was unable to attend his course for reasons of mental health, accident or illness. The applicant concedes his education provider accepted he had faced some difficulties and allowed him to re-enrol for a final chance to study in June 2019 despite his poor academic history.

26. The applicant’s admission that he stalked and intimidated his former girlfriend and was convicted of criminal offences are particularly concerning. While the applicant links his behaviour to medication he was taking at the time, the Tribunal is not satisfied on the evidence before it that this was the case. The applicant engaged in behaviour that led to him being involved with the justice system in Australia while he should have been attending university and studying. The conditions of the applicant’s student visa required him to maintain enrolment which is a strict requirement, and this was his responsibility as the visa holder. The circumstances in which the ground for cancellation occurred weigh against the applicant in the Tribunal’s assessment of whether the exercise the discretion to cancel his visa.

    ·     past and present behaviour of the visa holder towards the department

27. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department except that he did not reply to the Department’s NOICC letter. The applicant claimed it had landed in his junk email file and he only saw the notice of cancellation letter that arrived later. The Tribunal places neutral weight on this criterion in assessing whether to exercise the discretion to cancel the applicant’s visa.

    ·     whether there would be consequential cancellations under s.140

28. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.

    ·     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

29. The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the applicant’s claims and evidence and considers the mandatory legal consequences of cancellation do not outweigh the other considerations in this case.

    ·     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

30. There is no evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations.

    ·     if it is a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

31. The Subclass 500 Student Visa is not a permanent visa.

    ·     any other relevant matters

32. On 30 July 2020 the Tribunal wrote to NIC and requested information regarding the applicant’s enrolment and study history. NIC responded on 11 August 2020 and provided details of the applicant’s enrolment, lack of progress and some of their communications from 29 February 2016 to 27 September 2019. NIC’s general response includes the following:

    NIC can confirm that Mr Muhammad Tabish BAIG (date of birth: 25/03/1994) attended NIC as a student from Trimester 1, 2016 (29/02/2016) up until the end of Trimester 2, 2019 (27/09/2019).

    During the course of Mr BAIG’s studies, his enrolment was terminated in Trimester 1, 2019 for non-commencement of studies due to failure to re-enrol (cancelled Confirmation of Enrolment - Attachment 1). However, on the basis of compassionate grounds, NIC later accepted Mr BAIG’s explanations of personal matters affecting his ability to study and provided Mr BAIG with a new stand-alone Letter of Offer (Attachment 2).

    The new stand-alone Letter of Offer provided Mr BAIG with the opportunity to re-enrol for one last trimester (Trimester 2, 2019 operating from 24/06/2019 to 27/09/2019). An Academic Management Plan was part of the condition of Mr BAIG’s enrolment. This plan acted as an intervention strategy to encourage Mr BAIG to complete his course and reaffirm that this would be his final opportunity to complete his studies at NIC due to a lack of study progression. Mr BAIG was made aware that he would not meet the requirements to enter into the Bachelor Program at the University of Newcastle, as he could not meet the average grade requirements. On this basis, the University cancelled Mr BAIG’s confirmation of enrolment for the Bachelor of Chemical Engineering (Attachment 3).

    Please find attached to this correspondence Mr BAIG’s final Confirmation of Enrolment (Attachment 4) as well as the latest PRISMS screenshot (Attachment 5). Unfortunately, due to a clerical oversight, Attachment 4 was not created in the PRISMS system until this matter was brought to the attention of the administrative team, for that we do apologise for causing any confusion. This is not something that has occurred in the history of the College.

    During the course of Mr BAIG’s studies with NIC, he was repeatedly counselled and had numerous meetings (via email, SMS and face-to-face) to discuss his failure to attend and his lack of study progression. Mr BAIG’s attendance and academic record are also provided (Attachment 6, 7.1 and 7.2). Of the twenty-three classes he undertook and remained enrolled in, Mr BAIG passed only seven of these classes. NIC requires an attendance of 80% for each class undertaken by a student and Mr BAIG could only achieve this twice for the entire duration of his studies, as indicated within Attachment 6.

    NIC records indicate that from as early as Trimester 2, 2016, Mr BAIG was placed on conditional enrolment due to non-progression of studies in accordance with NIC policies. From that time onwards, NIC has numerous records of meeting requests and warnings for Mr BAIG concerning his lack of attendance and poor progression. Please find below some examples of this contact and counselling that is likely to be pertinent to the current matter at hand.

    [NIC’s response then sets out a summary of detailed communications by email, SMS and face to face meetings regarding the applicant’s lack of attendance, failure to progress and failure to adhere to conditions of his enrolment at NIC].

    The volume of correspondence concerning this matter is quite extensive. Should the Administrative Appeals Tribunal require copies of the above correspondence, or any other correspondence relating to attendance and study progression dating back to 2016, please contact NIC as we would be more than happy to oblige.

    NIC would like to confirm that Mr BAIG was in fact a student of NIC up to 27 September 2019. After this date, Mr BAIG was no longer an NIC student and NIC is not aware of his activities or movements since this time. The most recent contact that NIC has had concerning Mr BAIG is stated in the table above…

1. Information was obtained from NIC because the applicant’s period of non-enrolment, while still grounds for cancellation, was relatively short and a positive study history may weigh in his favour. However, it is apparent the applicant has spent a considerable amount of time in Australia (four years and eight months from his arrival to the date his visa was cancelled) without progressing from a foundation course to a degree programme. It is clear from the information and associated documents from NIC, especially details of communications between the applicant and the college that the applicant was given a great deal of latitude to correct his failures and non-attendance, and that the college went to great lengths to encourage and enable him to study. The applicant was able to retake subjects several times, for example, while studying a Certificate IV in Tertiary Preparation Program the transcript shows the applicant attempted Advanced Mathematics three times but did not pass. The transcript for a Foundation Program shows the applicant attempted Advanced Mathematics four times without success (plus one withdrawal). On several occasions the applicant received a mark of ‘0’ out of 100, grade ‘FF’ with his highest mark in the subject being ‘15’. The applicant was also offered numerous meetings and interventions by NIC as well as being given deferred examination times.

2. The Tribunal accepts the applicant may have been attempting to undertake a course that his father wanted him to do and was outside his capability since he was unable to meet the mathematics requirement despite many attempts at the subject. It is evident the applicant was capable of passing some units as his academic transcripts show he achieved three credits and a distinction in the Certificate IV in Tertiary Preparation Program and a pass and two credits in the Foundation Program. However, as stated by NIC, “Of the twenty-three classes he undertook and remained enrolled in, Mr Baig passed only seven of these classes. NIC requires an attendance of 80% for each class undertaken by a student and Mr Baig could only achieve this twice for the entire duration of his studies.” It was open to the applicant to reassess his study goals at a much earlier stage, but he did not do so. A Student visa does not permit the visa holder to remain in Australia without making academic progress. [1]

   [1] All information provided to the Tribunal from NIC was put to the applicant for comment or response in the s.359A letter dated 6 October 2020, as outlined in this decision.

3. According to the information provided, NIC had issued the applicant a “stand-alone” COE to allow him to study from 24 June to 27 September 2019, as a final chance for him to complete his foundation studies.

4. On 6 October 2020 the Tribunal wrote to the applicant in accordance with s.359A of the Act inviting him to comment or respond to the information from NIC and providing him with the documentation received. Specifically, the information put to him was as follows:

   ·     You have a very poor academic record over a long period from your enrolment at NIC;

   ·     As early as 2016 your enrolment was made conditional due to non-progression of studies;

   ·     You gave evidence at the hearing that you had passed everything except mathematics while attending NIC, but your record, provided by NIC shows you failed other subjects as well;

   ·     NIC provided evidence that they made numerous attempts to assist you and to address your failure to attend as well as lack of study progression but you provided multiple excuses, did not change your behaviour and did not complete any courses of study;

   ·     According to NIC, as a condition of your final enrolment period from 24 June to 27 September 2019 you signed an academic management plan but did not comply with its terms;

   ·     NIC advised the Tribunal that they had determined medical evidence you provided in support of a claim of having had an appendectomy on 23 September 2019 was not genuine.

5. The applicant was also invited to provide the following information in writing:

   ·     Independent, verifiable medical evidence in support of various medical claims you have made to NIC and the Tribunal in relation to your failure to complete your studies (depression, alopecia, jaundice, appendicitis and kidney stones).

6. The representative’s response to the invitation to comment dated 19 October 2020 refutes information provided by NIC and makes the following claims:

   ·     At the time of enrolment, the applicant did not realise the difficulties he would have in relation to the mathematics course at NIC;

   ·     The applicant found mathematics very challenging which was the reason for his poor performance in the subject;

   ·     The applicant denies his enrolment at NIC was conditional as early as 2016 and claimed it was normal for NIC and for this particular course that students were expected to achieve certain outcomes;

   ·     The “thrust” of the applicant’s claims regarding the only courses he was unable to pass was that he failed in mathematics; advanced mathematics and programming;

   ·     As a result of his failure to pass certain subjects required for engineering, the applicant changed his study path to IT;

   ·     The applicant “takes issue” with the contention of NIC that he provided multiple excuses for his lack of study progression as it was due to his difficulties with mathematics;

   ·     The applicant had meetings with NIC regarding entry to a bachelor’s degree in IT, but his request was not approved; in addition, he would have to retake mathematics;

   ·     The applicant regrets not disclosing his relationship issues and pending criminal charges to NIC as it affected his studies;

   ·     The applicant was assessed by a psychiatrist and a report issued on 28 January 2020. [the report appears to have been prepared in relation to the applicant’s criminal charges since the extract in the submission refers to the NSW Mental Health (Forensic Provisions) Act 1990] It refers to the applicant meeting diagnostic criteria for certain conditions and sets out some of his “increased symptoms” affecting his mental health between 2017 and 2019;

   ·     The applicant was contacted by NIC on 14 October 2019 about a meeting regarding unsatisfactory course progress and he was prepared to attend;

   ·     The applicant was not aware NIC doubted his medical condition [appendectomy] and if he had known he would have challenged it. The Tribunal is not entitled to rely on a finding by NIC in determining whether the applicant was malingering or that he did not have a medical condition at the time.

7. The applicant did not refute the information from NIC that he had a poor attendance and study history. Neither did he provide any independent, verifiable evidence of his claimed medical conditions in response to the Tribunal’s invitation. The Tribunal has not relied specifically on the findings by NIC that the applicant provided bogus medical documents to support a claim of having undergone an appendectomy but did not find the applicant to be credible in this regard. This is because, as well as the absence of independent evidence, at the Tribunal hearing the applicant did not refer to it when asked about hospitalisation or surgery in October 2019 (instead he was evasive and claimed confusion over which month the Tribunal was referring to) and was also hesitant in eventually stating he did have his appendix removed. 

8. The representative’s response addresses the issue of NIC having reported the applicant to the Department. The Tribunal addressed the matter of the applicant’s non-enrolment period at the hearing. Despite the applicant failing to maintain enrolment for a shorter period then the delegate had found, nevertheless there were grounds to cancel the applicant’s visa.

9. The Tribunal accepts the applicant may have experienced some personal issues and study difficulties at NIC. He claims to now be on his preferred study path but only took the appropriate action post visa cancellation by enrolling in a new course that begins on 28 September 2020. The Tribunal assessed the evidence provided by NIC and the applicant’s response and finds that while the applicant’s non-enrolment period was short, he has a poor study and attendance history in Australia despite efforts by his education provider to assist. The Tribunal is satisfied the applicant’s conduct detailed in the information provided by NIC, and his behaviour that led to criminal charges are not consistent with a person who claims to place great importance on gaining qualifications in Australia. This information weighs against the applicant in the Tribunal’s consideration of whether to exercise its discretion to cancel his visa.   

   Conclusion

10. The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in his favour, on balance, the Tribunal is satisfied that most considerations weigh against the applicant. The Tribunal is not satisfied the issues encountered by the applicant while holding a Student visa in Australia outweigh the grounds for the visa to be cancelled.

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

    DECISION

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

    Wendy Banfield
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder  (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)     the holder is enrolled in a registered course; or

    (b)     in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)     the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.