Boparai (Migration)

[2020] AATA 834

Boparai (Migration) [2020] AATA 834 (13 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Inderjeet Singh Boparai

CASE NUMBER:  1712274

HOME AFFAIRS REFERENCE(S):          BCC2017/1113530

MEMBER:L. Hawas

DATE:13 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 13 March 2020 at 2:48pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – discretion to cancel visa – factors for  and against cancellation – father’s death – physical health – enrolment in non-registered course on advice of migration agent – agent’s delay in providing information for applicant’s responses to tribunal’s requests – enrolment in registered course after receiving notice of intention to consider cancellation – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359A

Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)

STATEMENT OF DECISION AND REASONS

Introduction

1. The applicant is a 25 year old man from India. He came to Australia on 12 January 2015 on a Subclass 573 Higher Education Sector visa.[1] By written decision dated 2 June 2017, a delegate of the Minister for Immigration and Border Protection cancelled the applicant’s visa. By this application, the applicant seeks a review of that decision. The applicant gave the Tribunal a copy of the delegate’s decision at the time he applied for this review.

   [1] Department’s file folio 37.

2. The delegate cancelled the applicant’s visa under s.116(1)(b) of the Migration Act 1958 (Act) on the grounds that he breached condition 8202(2)(a) of his visa. That condition required the applicant to remain enrolled in a registered course. The delegate found that the applicant was not enrolled in a registered course between 7 July 2016 and 2 June 2017 when the delegate cancelled his visa. 

3. In this review, the Tribunal must decide whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.  

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

Procedural matters

1. On 24 January 2018, the Tribunal wrote to the applicant pursuant to s. 359(2) of the Act and invited the applicant to give information about:

   (a)Whether he was enrolled in a registered course between 7 July 2016 and 2 June 2017;

   (b)Any circumstances in which the ground for cancellation arose;

   (c)Whether he has a compelling need to remain in Australia;

   (d)His compliance with visa conditions generally, including any previous visas he has held;

   (e)The hardship that may be caused to him, his family, or anyone else connected to the visa if his visa is cancelled; and

   (f)Any other matter he considers relevant.

2. The Tribunal’s letter to the applicant was sent to the last address provided to the Tribunal at that time in connection with the review. In the letter, the Tribunal advised that if the information was not provided in writing by 7 February 2018 (or an extended time), the Tribunal may make a decision on the review without taking any further action to obtain the information, and that the applicant would lose any right he might otherwise have had under the Act to appear before it to give evidence and present arguments.

3. The applicant did not respond to the letter by 7 February 2018. In those circumstances, s. 359C(1) of the Act applies and pursuant to s. 360(3) the applicant lost the opportunity to appear before the Tribunal to give evidence and present arguments.

4. The Tribunal made a further attempt to obtain the information from the applicant. By letter to the applicant dated 26 July 2019, sent to the last address provided to the Tribunal at that time in connection with the review, the Tribunal invited the applicant again to give it the information it had requested in its 24 January 2018 letter. In its 26 July 2019 letter, the Tribunal informed the applicant that as it did not receive from him the information requested in its 24 January 2018 letter within the period allowed in that letter (by 7 February 2018) he had lost his right under the Act to appear before it to give evidence and present arguments. But the Tribunal informed the applicant that it would withhold a decision on this application until after 9 August 2019 and it invited the applicant again to give it the information (and any other information he considered relevant) by that date.

5. The applicant responded by way of letter to the Tribunal dated 8 August 2019 in which he provided some information and attached some documents. In that letter the applicant stated that his former migration agent did not pass on to him the Tribunal’s letter of 24 January 2018. The Tribunal has considered the contents of that letter and the attachments.

6. By further letter to the applicant dated 4 October 2019, sent to the last address provided at that time in connection with the review, the Tribunal gave the applicant under s. 359A of the Act particulars of information that it considered would be the reason, or part of the reason, for affirming the delegate’s decision. The Tribunal asked the applicant to comment on or respond to the information by 18 October 2019. The information is referred to below.

7. The applicant responded on 16 October 2019 by email to the Tribunal. In that email, the applicant stated that he had retained lawyers to act for him and they had requested information from his former migration agent in order to respond to the Tribunal’s 4 October 2019 letter. The applicant stated that he required an extension of four weeks to comment on or respond to the information. In support of that request, the applicant sent the Tribunal a letter dated 16 October 2019 from lawyers acting for his former migration agent to the applicant’s freshly retained lawyers. The letter referred to an earlier letter from the applicant’s lawyers dated 11 October 2019 (which was not sent to the Tribunal) and stated that the lawyers for the applicant’s former migration agent anticipated being in a position to respond to the applicant’s lawyers in two weeks after obtaining instructions.

8. Given the letter from the lawyers for the applicant’s former migration agent to the applicant’s lawyers stated that the requested information would be forthcoming in two weeks, the Tribunal did not consider the applicant reasonably needed a further four weeks (and a total of nearly six weeks) to comment on or respond to the information set out in its letter to him of 4 October 2019. By email letter to the applicant dated 18 October 2019, sent to the last address provided at that time in connection with the review, the Tribunal notified him that it would extend the time for him to comment on or respond to the information in its 4 October 2019 letter for two weeks (from the time when the original time limit expired on 18 October 2019) to 1 November 2019.

9. But as things turned out, the Tribunal has allowed the applicant much longer than four weeks from 18 October 2019 to comment on or respond to the information in its 4 October 2019 letter.

10. The applicant responded to the Tribunal’s 4 October 2019 letter by email letter to the Tribunal dated 30 October 2019. In that letter, the applicant stated that he was yet to receive the requested information from his former migration agent. The applicant provided the Tribunal with further information and he attached further documents in support of his position. The Tribunal has considered the contents of that email and the attachments.

11. After receiving that letter from the applicant it was necessary for the Tribunal to write to him again. By letter to the applicant dated 20 January 2020, sent to the last address provided to the Tribunal at that time in connection with the review, the Tribunal gave the applicant under s. 359A of the Act further particulars of information that it considered would be the reason, or part of the reason, for affirming the delegate’s decision. The Tribunal asked the applicant to comment on or respond to the information by 3 February 2020. The information is referred to below.

12. In that letter, the Tribunal stated that given it had invited the applicant to comment on or respond to the information set out in the letter by 3 February 2020, it would allow the applicant until that date to comment further on or respond further to the information set out in its 4 October 2019 letter to him. That would allow the applicant well over four weeks from 18 October 2019, being the length of the additional time to comment or respond the applicant had sought in his letter to the Tribunal of 16 October 2019. The Tribunal stated that in any further comment or response the applicant should include any information he had received from his former migration agent or the lawyer acting for his former agent pursuant to the applicant’s earlier request (or that of his new lawyers) for information from the new agent. The Tribunal stated that if the applicant required additional time to obtain information from his former migration agent or to comment further on or respond further to the information set out in the 4 October 2019 letter he may ask for additional time and the Tribunal would consider any request.

13. The applicant responded on 2 February 2020 by letter with attachments emailed to the Tribunal.  The applicant did not seek additional time to respond to the Tribunal’s 20 January 2020 letter or the Tribunal’s 4 October 2019 letter. The applicant stated that he responded to the 4 October 2019 letter by his letter to the Tribunal dated 30 October 2019 with attachments. The applicant reattached his 30 October 2019 letter and the attachments to it. The applicant stated that he was yet to receive the requested information from his former migration agent and that he had lodged a complaint against his former agent with MARA.  Given that the applicant stated that he was yet to receive the information from his former agent, the Tribunal considered whether to give the applicant additional time to comment on or respond to the information set out in its 4 October 2019 letter (as well as the information set out in its 20 January 2020 letter). The Tribunal decided not give the applicant additional time. Despite the Tribunal inviting the applicant in its 20 January 2020 letter to ask for additional time to comment or respond, including asking for additional time on the grounds that he required more time to obtain information from his former migration agent, the applicant did not ask for additional time. Further, the applicant has now had in aggregate over four months to comment on or respond to the information set out in the Tribunal’s 4 October 2019 letter. In those circumstances the Tribunal decided not to extend time of its own volition. The Tribunal has considered the contents of the applicant’s 2 February 2020 letter and the attachments to it.

14. As the Applicant did not respond to the Tribunal’s letter dated 24 January 2018 seeking information under s. 359(2) of the Act, the applicant lost his right to a hearing. The Tribunal has determined this review from the information in the Department’s file, the information in the Tribunal’s file, and the information in the applicant’s letters (and the attachments to them) to the Tribunal.

Did the applicant fail to comply with condition 8202?

1. The applicant’s 573 visa was subject to condition 8202. The terms of the condition as they apply to this review are set out in Schedule 8 to the Migration Regulations 1994 (Regulations). If the applicant has not complied with that condition, under s.116(1)(b) of the Act, the visa may be cancelled. The issue in this review is whether the applicant has not complied with condition 8202, and if he has not complied, whether his visa should be cancelled.

2. Condition 8202, as it applies in this review, 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).

3. In the department’s notice of intention to consider cancellation of the applicant’s visa dated 9 May 2017, [2] which the delegate sent to the applicant, the delegate stated inter alia:

   Condition 8202(2)(a) states the visa holder meets the requirements if the visa holder is enrolled in a registered course. Based on the evidence available to me in the Provider Registration and International Student Management System (PRISMS), it appears that you have not been enrolled in a registered course of study since 7 July 2016. Therefore, it appears you do not meet the requirements of condition 8202(2)(a).

   [2] Department’s file folio 4-6.

4. In her decision of 2 June 2017, the delegate stated that the applicant did not respond to the notice of intention to consider cancellation of his visa.[3]

   [3] Delegate’s decision at 4.

5. The delegate’s finding that the applicant did not respond to the notice of intention to consider cancellation of his visa was incorrect. The applicant responded to the notice on 31 May 2017 by email letter with attachments to the department.[4] Under cover of an email to the department dated 1 June 2017, the applicant sent further documents to the department.[5] It is apparent from the department’s file that the delegate did not know the applicant had sent those emails and attachments to the department before she decided to cancel the applicant’s visa, and that she cancelled the visa without considering the applicant’s emails and attachments first.[6] During this review, the Tribunal read the 31 May and 1 June 2017 email letters and attachments the applicant sent to the department and has taken them into account in arriving at its decision.

   [4] Department file folio 19-20.

   [5] Department file folio 21-31.

   [6] Department file folio 32

6. In his letter to the department dated 31 May 2017[7], the applicant stated that:

   Due to my ill health where I was suffering from various allergic conditions and short of breath I was not able to complete my studies satisfactorily and as a result STOTTS College cancelled my COEs on 7 July 2016.[8]  

   [7] Department file folio 20.

   [8] The Tribunal has dealt with the applicant’s claims about his health in paragraph 60 below

7. Accordingly, the applicant effectively admitted that he was not enrolled in a registered course after 7 July 2016 when his enrolment at Stotts College was cancelled.

8. Returning to the delegate’s decision, the delegate stated that based on the evidence available to her in PRISMS, the applicant had not been enrolled in a registered course from 7 July 2016[9] and that since that date the applicant had been in breach of condition 8202(a) of his visa.[10] On those grounds, the delegate cancelled the visa.

   [9] Delegate’s decision at 3.

   [10] Delegate’s decision at 2.

9. The information on the applicant in PRISMS to which the delegate referred in her decision is also available to the Tribunal. The PRISMS records reveal that the applicant’s enrolment in the following courses (in which the applicant was previously enrolled) was cancelled on 7 July 2016:

   (a)Certificate III in Commercial Cookery [082495D] to commence on 23 November 2015 and to finish on 9 December 2016;

   (b)Certificate IV in Commercial Cookery [082496C] to commence on 23 January 2017 and to finish on 18 June 2017;

   (c)Diploma of Hospitality [082498A] to commence on 17 July 2017 and to finish on 9 December 2017; and

   (d)Bachelor of Business [057075K] to commence on 19 March 2018 and to finish on 31 December 2019.  

10. The information in PRISMS also reveals that the applicant was not enrolled in another registered course between 7 July 2016 and 2 June 2017 when the delegate cancelled his visa.

11. In his letter to the Tribunal dated 8 August 2019 (in response to the Tribunal’s letter of 26 July 2019 inviting the applicant again to give it the information requested in its 24 January 2018 letter), the applicant stated that between 7 July 2016 and 2 June 2017 he was enrolled in a registered course being a Diploma of Hospitality leading to a Bachelor of Business.  In support of that claim, the applicant attached four Overseas Student Confirmation of Enrolment (CoE) documents. The applicant stated that his former migration agent had assured him that he (the agent) had informed the department that the applicant was enrolled in a registered course and had provided the department with evidence of the applicant’s enrolment in response to the notice of intention to consider cancellation of the applicant’s visa.

12. The CoEs the applicant sent the Tribunal were printed on 19 November 2015 and current as at that date. Those CoEs were for the courses set out in paragraph 27 above.[11] The courses set out in the CoEs were for a course of study at Acknowledge Education Pty Ltd (trading as Stott’s Colleges, Australian Surf Industry Training School, Front Cooking School, Melbourne Language Centre) culminating in a Bachelor of Business. But as the information in PRISMS reveals and as the applicant admitted in his letter to the department dated 31 May 2017 (as set out in paragraph 24 above), the applicant’s enrolment in those courses was cancelled on 7 July 2016.

    [11] The course codes on the CoEs correlated to the course codes set out in paragraph 27 above.

13. In its letter to the applicant dated 4 October 2019, the Tribunal under s. 359A of the Act:

    (a)Gave the applicant particulars of the information in PRISMS that revealed that the applicant’s enrolment in the courses set out in paragraph 27 above was cancelled on 7 July 2016;

    (b)Stated that the information was relevant to determining whether the applicant was in breach of condition 8202(2)(a) of his visa, and whether the power to cancel his visa under s. 116(1)(b) of the Act had been enlivened;

    (c)Stated that it considered the information would be a reason, or a part of the reason, for affirming the delegate’s decision; and

    (d)Invited the applicant to comment on or respond to the information by 18 October 2019 (which was subsequently extended to 1 November 2019).

14. Further, in its letter to the applicant of 20 January 2020, the Tribunal stated that the information in PRISMS provided that between 7 July 2016 and 2 June 2017 (when the delegate cancelled the applicant’s visa) he was not enrolled in a registered course, and as a consequence he was in breach of condition 8202(2)(a) of his visa. The Tribunal stated that if it relied on that information (about which it was yet to make up its mind) it would find that the power to cancel his visa had been enlivened. Given that further explanation, the Tribunal invited the applicant to comment further on or respond further to the information by 3 February 2020.

15. The information available to the Tribunal in PRISMS was in substance the same information as that contained on pages 2 and 3 of the delegate’s decision (that the applicant had not been enrolled in a registered course of study since July 2016), and that contained in the applicant’s letter to the department of 31 May 2017 (that Stotts College had cancelled his enrolment on 7 July 2016). For that reason, strictly, under ss. 359A(4)(b) and (ba) of the Act, it was not necessary for the Tribunal to give the applicant particulars of the information in PRISMS under s. 359A. But the applicant was not prejudiced by the Tribunal giving him particulars of that information under s. 359A and giving him the opportunity to comment or respond.[12]   

    [12] In any event, it was necessary for other reasons for the Tribunal to write to the applicant on 4 October 2019 under s. 359A of the Act.

1. In his letter to the Tribunal of 30 October 2019 (in response to the Tribunal’s letter of 4 October 2019), the applicant attached again the CoEs he sent to the Tribunal on 8 August 2019 and stated that “I was maintaining a valid COE at the time when department issue me the NOICC and between the period of 7 July 2016 and 2 June 2017”.

2. In his letter to the Tribunal of 2 February 2020 (in response to the Tribunal’s letter of 20 January 2020), the applicant relied on his 30 October 2019 letter to the Tribunal.

3. As set out in paragraph 30 above, the CoE’s the applicant sent the Tribunal in support of his claim were current as at 19 November 2015. They did not include any information about the applicant’s enrolment in the relevant courses on or after 19 November 2015 or 7 July 2016. The applicant’s assertion that he had maintained valid CoEs when the department issued him with the notice of intention to consider cancellation of his visa runs contrary to the admission in his letter to the department of 31 May 2017 in which he admitted that Stotts College “cancelled his CoEs [enrolment]” on 7 July 2016. It also runs contrary to the information in PRISMS as referred to in the notice of intention to consider cancellation and in the delegate’s decision. Accordingly, the Tribunal does not accept the applicant’s claim that he was enrolled in a registered course (or that he maintained “a valid CoE”) between 7 July 2016 and 2 June 2017.

4. On the evidence before the Tribunal, it finds that:

   (a)The applicant was not enrolled in a registered course between 7 July 2016 and 2 June 2017 when the delegate cancelled his visa;

   (b)That constituted a breach by the applicant of condition 8202(2)(a) of his visa; and

   (c)Grounds for cancelling the applicant’s visa under s. 116(1)(b) of the Act have been made out.

Consideration of the discretion to cancel the visa

1. Having found that grounds for cancelling the applicant’s visa have been made out, 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’.

2. The information before the Tribunal reveals that:

   (a)The applicant was granted his TU 573 visa on 30 December 2014;[13]

   (b)The applicant arrived in Australia from India on 12 January 2015; [14]

   (c)The applicant came to Australia on the grounds that he would undertake a course of study leading to the grant of a Bachelor of Information Technology from Victoria University. But after completing an ELICOS course at Victoria University between March and May 2015, he concluded that studying for the ultimate grant of a degree in information technology might be beyond him given he had lost his parents the year before and the health problems he was enduring. He decided to abandon his planned information technology studies and enrolled in a course of study at Stotts College (Acknowledge Education Pty Ltd), which would lead to the ultimate grant of a Bachelor of Business;[15]

   (d)The applicant’s proposed course of study at Stotts College is set out at paragraph 27 above. Had the applicant remained enrolled in that course of study and completed the course requirements, he would by now have completed his Bachelor of Business. That course was to finish on 31 December 2019;

   (e)Due to his health problems, the applicant was unable to progress his studies at Stotts College and his enrolment in his course of study there was cancelled on 7 July 2016; [16]

   (f)He recovered from his health problems sufficiently to undertake some study in mid to late 2016. Accordingly, at about that time, he enrolled in a Diploma of Leadership and Management course at FMEDGE (FMEDGE Course). He commenced that course on 30 September 2016 and completed it on 30 April 2017; [17]

   (g)On 1 June 2017 (the day before the delegate cancelled the applicant’s visa), Cambridge International College offered the applicant enrolment in a Bachelor of Business (Management) course. That course was to commence on 29 May 2017 and would finish on 19 May 2019. [18]  

   (h)The delegate cancelled the applicant’s visa on 2 June 2017; and

   (i)The applicant applied for this review on 9 August 2017.

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

[13] Department file folio 36.

[14] Department file folio 37.

[15] Applicant’s response dated 31 May 2017 to the notice of intention to consider cancellation of his visa dated 9 May 2017 in department’s file folio 20. Also, CoE for ELICOS course at Victoria University the applicant sent to the Tribunal under cover of his letter dated 8 August 2019.

[16] Applicant’s response dated 31 May 2017 to the notice of intention to consider cancellation of his visa at department file folio 20.

[17] Applicant’s response dated 31 May 2017 to the notice of intention to consider cancellation of his visa at department’s file folio 20.

[18] Applicant’s email to the department dated 1 June 2017 at departments file folio 21-31. Under cover of that email, the applicant sent the department a letter of offer from Cambridge International College dated 1 June 2017 and proposed written agreement to enrol in the Bachelor of Business (Management) course.

1. The purpose of the applicant’s travel to and stay in Australia on his 573 visa was to enable him to undertake study in a registered course. He completed an ELICOS course in May 2015.  His enrolment in his proposed registered course of study at Stotts College leading to the ultimate grant of a Bachelor of Business was cancelled on 7 July 2016.

2. In his letter to the Tribunal dated 8 August 2019, the applicant attached a letter of offer he had received from the Technical Institute of Victoria dated 2 August 2019, which set out a course of study leading to the grant of a Diploma of Hospitality Management in August 2021. He stated that he wanted to remain in Australia to complete his proposed studies at that school before returning home to India. He stated that he did not want to return to India without first completing his studies in Australia. In his letter to the Tribunal dated 30 October 2019, the applicant stated again that he wanted to remain in Australia to complete his studies.

3. In this review, the tribunal considers it relevant to examine the steps the applicant took to re-enrol in a registered course after his enrolment at Stotts College was cancelled. The starting point is the applicant’s completion of the FMEDGE Course on 30 April 2017. That represented the applicant’s resumption of study after his enrolment at Stotts College was cancelled.

4. In its letter to the applicant dated 20 January 2020, the Tribunal under s. 359A of the Act:

   (a)Stated that PRISMS, which records a student’s history of enrolling in and completing registered courses, does not record the applicant’s enrolment in the FMEDGE Course or his completion of the course on 30 April 2017;

   (b)Stated that a search the Tribunal conducted on the website revealed that the FMEDGE Course is not, and was not in 2016 and 2017, a registered course;

   (c)Stated that the information was relevant to whether the Tribunal should exercise its discretion to cancel the applicant’s visa in the event it found the power to cancel the visa had been enlivened;

   (d)Stated that it considered the information would be a reason, or a part of the reason, for affirming the delegate’s decision because if the FMEDGE Course was not a registered course when the applicant enrolled in and completed the course, and the Tribunal relied on that information, the Tribunal would weigh the applicant’s completion of the course against exercising the discretion to cancel the visa (in the applicant’s favour) but not as heavily as it would have weighed it in the applicant’s favour if the course had been registered; and

   (e)Invited the applicant to comment on or respond to the information by 3 February 2020.

5. The applicant commented on or responded to that information in his letter to the Tribunal dated 2 February 2020. In that letter, the applicant stated that he enrolled in the FMEDGE Course on the advice of his former migration agent. He stated that at the time he enrolled in the course he was not aware whether it “was registered with the CRICOS or it is a valid course”. The applicant also stated that his agent misled or misguided him and that he did not intend to breach any condition of his visa. 

6. The applicant did not state clearly how he claims his former migration agent misled or misguided him. The Tribunal understands the claim to be that the applicant’s former migration agent failed to advise him that the FMEDGE Course was not registered (or advised him incorrectly that the course was registered), advised him that enrolling in the course would bring him back into compliance with condition 8202(2)(a) of his visa after his enrolment at Stotts College was cancelled, and advised him that enrolling in the course would reduce the risk of his visa being cancelled. Generally, the focus of the applicant’s claim against his former migration agent seems to be that the agent failed to advise him to re-enrol in a registered course after his enrolment at Stotts College was cancelled to reduce the risk of his visa being cancelled.[19]  

   [19] The applicant’s claim that his former migration agent misled or misguided him could also be that the agent told him that the agent would respond to the notice of intention to consider cancellation of his visa when the agent did not, and that the agent would attend to all the necessary maters in this review (including applying for a bridging visa) when the agent did not. These claims are considered below.  

7. A registered course, as referred to in condition 8202(2)(a) of the applicant’s visa, is defined in r.1.03 of the Regulations and refers to a course provided by an institution, body or person that is registered under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 to provide the course to overseas students. Registered providers and registered courses appear in the Commonwealth Register of Institutions and Courses for Overseas Students (CRICOS) kept under s.14A of that act. The search the Tribunal conducted on the CRICOS website revealed that the FMEDGE Course is not (and was not in 2016 and 2017) registered under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, and it does not (and did not in 2016 and 2017) appear in CRICOS. Also, as the Tribunal informed the applicant, his enrolment in that course and his completion of the course is not listed in the PRISMS records to which the Tribunal has access. The Tribunal finds that the FMEDGE Course was not a registered course within the meaning of condition 8202(2)(a) of the applicant’s visa when the applicant enrolled in the course and completed it on 30 April 2017. The effect of that finding is set out in the paragraphs that follow under this heading.

8. The Tribunal turns now to consider the applicant’s claim that he wants to remain in Australia to complete his proposed studies at the Technical Institute of Victoria (or some other registered course of study). The Tribunal has taken the claim into account and considers it to find some support in the evidence. By enrolling in and completing the FMEDGE Course after his visa was cancelled the applicant displayed initiative and a willingness to continue studying in Australia. Also, the applicant obtained the letter of offer from the Technical Institute of Victoria dated 2 August 2019 as well as the earlier letter of offer from Cambridge International College dated 1 June 2017. Both of those courses of study are registered. Accordingly, the Tribunal accepts that the applicant proposes to study in Australia and it weighs the claim against exercising its discretion to cancel the applicant’s visa. But the weight the Tribunal places on the claim is reduced by two factors. 

9. First, condition 8202(2)(a) of the applicant’s visa requires him to be enrolled in a registered course.  Because the FMEDGE Course was not registered, the weight the Tribunal places on the applicant’s completion of the course on 30 April 2017 is reduced. Had the FMEDGE Course been registered or the applicant otherwise re-enrolled in a registered course and come back into compliance with the conditions of his visa after his enrolment at Stotts College was cancelled, the Tribunal would have weighed that substantially more heavily in the applicant’s favour.

10. The Tribunal accepts the applicant’s claim that his former migration agent did not advise him that the FMEDGE Course was not registered and that he misled or misguided the applicant as set out in paragraph 45 above. The Tribunal weighs that in the applicant’s favour. But the Tribunal gives the failings of the applicant’s former migration agent limited weight.

11. Ultimately, it is the applicant’s responsibility to know of the conditions of his visa and to abide by them. If the applicant wished to re-enrol in a registered course after his enrolment at Stotts College was cancelled to bring himself back within condition 8202(2)(a) of his visa and reduce the risk of his visa being cancelled (which the Tribunal assumes is what he intended to do by enrolling in the FMEDGE Course), ultimate responsibility for re-enrolling in a registered course lay with the applicant.

12. In any event, the applicant completed the FMEDGE Course on 30 April 2017. On the evidence, the applicant did not seek to enrol in a subsequent course until about 1 June 2017 being the date of the letter of offer from Cambridge International College. That was after the department sent the applicant the notice of intention to consider cancellation of his visa on 9 May 2017 and the day before the delegate cancelled his visa on 2 June 2017. True it is that only a little over a week passed between the applicant completing the FMEDGE Course on 30 April and the department sending him the notice of intention to consider cancellation on 9 May. But the applicant would have known for some time that the FMEDGE Course would end on 30 April. He could have taken steps to enrol in a registered course while he was studying at FMEDGE so that he could resume study in a registered course upon finishing at FMEDGE. Or he could have enrolled in a registered course promptly upon completing the FMEDGE Course. On the evidence before the Tribunal he did not do either of those things. Although the applicant did not make this claim expressly, the applicant’s former migration agent might have failed, during the FMEDGE Course, to advise the applicant to take steps to enrol in a registered course to take up after the FMEDGE Course had finished or to enrol in a registered course promptly after completing the FMEDGE Course. The Tribunal assumes that the applicant’s former agent failed to give him that advice. The Tribunal gives that some weight in the applicant’s favour but the weight is limited. Again, if at any time after the applicant’s enrolment at Stotts College was cancelled he wished to re-enrol in a registered course to come back within condition 8202(2)(a) of his visa then he had ultimate responsibility for enrolling in a registered course.  

13. Second, the letters of offer the applicant obtained from Cambridge International College and the Technical Institute of Victoria were obtained too late for the Tribunal to give them substantial weight. The offer the applicant obtained from Cambridge International College was dated 1 June 2017. As stated in paragraph 51 above, the offer was made to the applicant after the department sent the applicant the notice of intention to consider cancellation of his visa dated 9 May 2017 and the day before the delegate cancelled the applicant’s visa. There is no evidence before the Tribunal that the applicant accepted the offer. Had the applicant obtained that offer say while he was studying at FMEDGE or otherwise before the department sent him the notice of intention to consider cancellation of his visa, or had the applicant accepted the offer, the Tribunal would have weighed it more heavily in his favour. The letter of offer from the Technical Institute of Victoria is dated 2 August 2019. The applicant obtained that offer after the Tribunal’s letter to the applicant of 26 July 2019. Again, that offer would have carried more weight if the applicant obtained it before the department took steps to cancel his visa and if the applicant had accepted it.

14. The Tribunal has taken into account the applicant’s completion of his ELICOS course in May 2015 and weighed that against exercising its discretion to cancel his visa.

15. The applicant has been in Australia since January 2015. In that time he has only completed an ELICOS course between March and May 2015 and the unregistered FMEDGE Course on 30 April 2017. During the period between 7 July 2016 and 2 June 2017 the applicant was not enrolled in a registered course, was in breach of condition 8202(2)(a) of his visa, and was not fulfilling the purpose of his visa. The applicant claims that he was suffering from health problems during that time and the Tribunal has taken that into account. That is addressed further below.

16. In the end, the applicant’s breach of condition 8202(2)(a) of his visa was substantial. The Tribunal considers the severity of the breach to outweigh the applicant’s completion of the ELICOS course, his completion of the unregistered FMEDGE Course, his attempts to re-enrol in the registered courses at Cambridge International College and the Technical Institute of Victoria, and the applicant’s expressed wish to remain in Australia to study. The Tribunal weighs the applicant’s breach of condition 8202(2)(a) heavily in favour of exercising its discretion to cancel his visa. 

17. Other than to study, the applicant does not have a compelling need to remain in Australia.

The extent of compliance with visa conditions

1. Other than the applicant’s breach of condition 8202(2)(a) of his visa in issue, the applicant has not breached any other condition of his visa. The Tribunal has weighed that against exercising its discretion to cancel the applicant’s visa.

Circumstances in the which the ground for cancellation arose. Were the circumstances beyond the applicant’s control?

1. In his letter to the department dated 31 May 2017 in response to the notice of intention to consider cancellation of his visa and his letter to the Tribunal dated 8 August 2019, the applicant stated that:

   (a)His father died in March 2014 and his mother died some time before he came to Australia;

   (b)When he came to Australia in January 2015, he struggled with the recent passing of his father. He was due to commence the Certificate III in Commercial Cookery at Stotts College in November 2015. But he developed health problems that interfered with his proposed study. He was diagnosed with Asthma. He was also suffering from migraines, thyroid problems, hay fever, tiredness, depression and an anal fissure;[20]

   (c)Because of his health problems he was not able to engage with his studies at Stotts College and it was for that reason that the college cancelled his enrolment on 7 July 2016; and

   (d)When he received the notice of intention to consider cancellation of his visa, the applicant contacted his migration agent and gave him all the information necessary to respond to the department. The applicant’s migration agent assured him that he had given the department all the necessary information. The migration agent also assured him that “I do have a valid COE and my student visa will not be cancelled”.[21] The applicant claims that he trusted his migration agent and relied on his assurance to assume that the agent had submitted all necessary information to the department. The applicant says he was in shock when his visa was cancelled.

   [20] The medical certificates and medical history the applicant sent to the department on 1 June 2017 (Department file at folio 21-24) and to the Tribunal with his letter of 2 August 2019 reveal that he has had a history of suffering from the ailments claimed dating back to late 2015. Doctors have prescribed a variety of medication to the applicant to treat those ailments.

   [21] Letter to the Tribunal dated 8 August 2019.

1. In his letters to the Tribunal, the applicant claimed that he paid his migration agent $2,500 on the assurance that the agent would prevent the department cancelling his visa. The applicant claimed that he trusted his migration agent to prevent the cancellation of his visa but that the agent had misled him and let him down.

2. The Tribunal has considered the medical records and other documents the applicant sent to the department and to the Tribunal about the health problems he has suffered during his time in Australia. The Tribunal accepts that the applicant suffered the health problems claimed and that those problems were beyond his control. The Tribunal accepts the applicant’s health problems reduced his ability to engage with his studies in 2015 and 2016 and that they contributed to Stotts College cancelling his enrolment. The Tribunal also accepts that the applicant losing his father shortly before he came to Australia impacted his ability to engage with his studies. The Tribunal has weighed the applicant’s health and personal problems against exercising its discretion to cancel the visa. But the weight the Tribunal gives the applicant’s claim on health grounds is reduced.

3. Considerable time passed between Stotts College cancelling the applicant’s enrolment on 7 July 2016 and the delegate sending the applicant the notice of intention to consider cancellation on 9 May 2017. The applicant had ample time to re-enrol in a registered course after Stotts College cancelled his enrolment. In his letter to the department dated 31 May 2017, the applicant stated that by September 2016 his health improved sufficiently to allow him to undertake further study. Again, the applicant had ample time to re-enrol in a registered course after September 2016 when his health improved.

4. Although re-enrolling in a registered course would not have remedied or removed the applicant’s breach of condition 8202(2)(a) of his visa (compliance with visa conditions is an ongoing requirement) such that the Tribunal would not have had power to cancel his visa,  had the applicant re-enrolled in a registered course the Tribunal would have weighed that heavily in his favour. Indeed, the department may not have cancelled the applicant’s visa at all had he re-enrolled in a registered course.[22]

   [22] Department’s file folio 32 – see note at the end of the document. The Tribunal notes that the department might not have cancelled the applicant’s visa if he had re-enrolled in a registered course as a possibility only and does not make any finding about what the Tribunal would in fact have done.

5. But, on the evidence before the Tribunal, the applicant failed to take the opportunity to re-enrol in a registered course after his health improved in September 2016. On the evidence, the applicant did not seek enrolment in a registered course until after the department sent him the notice of intention to consider cancellation on 9 May 2017 and just before the delegate cancelled his visa on 2 June 2017. As set out in paragraph 39(g) above, the applicant obtained a letter of offer from Cambridge International College dated 1 June 2017 for a Bachelor of Business (Management) course (a registered course).

6. The applicant did enrol in and complete the FMEDGE Course between 30 September 2016 and 30 April 2017 (after his health improved). The Tribunal weighs that in the applicant’s favour. But as stated in paragraph 48 above, because that course was not registered the weight the Tribunal places on the applicant completing the course is reduced. Had the FMEDGE Course been registered the Tribunal would have weighed that more heavily in the applicant’s favour.

7. As stated in paragraphs 49 to 51 above, the Tribunal accepts that the applicant’s former migration agent failed to advise him that the FMEDGE Course was not registered and failed to advise him to re-enrol in a registered course after his enrolment at Stotts College was cancelled to bring him back into compliance with condition 8202(2)(a) of his visa and reduce the risk of his visa being cancelled. The Tribunal weighs the failings of the applicant’s former agent in the applicant’s favour. But the weight the Tribunal places on that is reduced. As the Tribunal has already stated, the applicant had the responsibility to know of the conditions of his visa, to stay within those conditions, and to come back within them if that is what he wished to do after Stotts College cancelled his enrolment.   

8. The Tribunal gives some weight to the applicant’s claim that he relied on his former migration agent to give all necessary information to the department in response to the notice of intention to consider cancellation of his visa, and to try and prevent the cancellation of his visa, but that the former agent failed to act. The delegate did not receive any response from the applicant’s former agent. The applicant responded to the notice of intention to consider cancellation late. The notice dated 9 May 2017 required a response within five days of the date the applicant was taken to have received the notice. The applicant did not respond until 31 May and 1 June 2017. The Tribunal accepts that this had something to do with the agent not submitting any information to the department on the applicant’s behalf and the applicant having to scramble late to get something to the department. As things turned out, the delegate did not consider the applicant’s response before deciding to cancel his visa.

9. But the weight the Tribunal places on the apparent delinquency of the applicant’s former migration agent in failing to respond to the notice of intention to consider cancellation is limited. Despite the applicant’s insistence now that he was enrolled in a registered course, or that he had a valid CoE, between 7 July 2016 and 2 June 2017, the evidence before the Tribunal does not bear that out. The delegate’s finding that the applicant was not enrolled in a registered course between those dates was correct. So, had the applicant’s former agent made any submission to the delegate to the effect that the applicant was enrolled in a registered course and was not in breach of condition 8202(2)(a) of his visa within the time allowed by the notice of intention to consider cancellation, that submission would have been incorrect and it would not have been open to the delegate to accept it.  Insofar as the applicant’s reference to having a valid CoE was a reference to the FMEDGE Course, as stated in paragraphs 49 and 51 above, the Tribunal has assumed that by enrolling in the course the applicant intended to re-enrol in a registered course and that his former migration agent did not advise him that the course was not registered. The Tribunal has given some weight to that claim in the applicant’s favour.

10. The Tribunal does not know what the delegate would have made of the parts of the applicant’s response to the notice of intention to consider cancellation that went to the discretion to cancel. It is not necessary to speculate about that. The Tribunal has now considered closely all the applicant’s evidence and submissions relevant to the discretion to cancel and made a decision.

Degree of hardship that may be caused (financial, psychological, emotional, or other hardship) to the visa holder and any family members

1. If the applicant’s 573 visa is cancelled, subject to any application he might make to extend his stay in Australia, he will not have the authority to remain and he will have to return to India.

2. In his letter to the Tribunal dated 8 August 2019, the applicant stated that his mother passed away in July 2007 and his father passed away in March 2014, just a few months before he came to Australia in January 2015. The applicant sent the Tribunal a copy of his father’s death certificate. The applicant said his grandmother has supported him both emotionally and financially while he has been in Australia. He said that his grandmother has great expectations of him and he wanted to make her proud by completing his studies in Australia before going home. He did not want to let her down by returning without first having completed his studies. The applicant also mentioned that he had a brother who still lived in India with his family. The applicant repeated most of those things in his letter to the Tribunal of 30 October 2019.

3. The Tribunal understands the effect of those submissions to be that the applicant will suffer hardship if he returns to India without the qualifications he came to Australia to acquire, and that his grandmother and brother will suffer hardship from that event as well. The Tribunal has considered those hardship claims.

4. The Tribunal accepts the applicant will suffer some hardship if he returns to India without the formal qualifications he came to Australia to acquire. The study options available to the applicant in India would be more limited than they are in Australia. If the applicant does not want to study on his return but wants to work, his job prospects in India are not be as good as they would have been had he obtained more formal qualifications in Australia. That will visit obvious hardship on the applicant. The applicant returning to India without formal Australian qualifications will also visit some hardship on his grandmother and his brother. They would have expected him to complete his studies in Australia before returning home. Reduced study or employment prospects for the applicant might also mean that the applicant will require more support if he remains unemployed. That responsibility will fall to his grandmother and brother resulting in hardship on them.

5. The Tribunal has weighed the hardship the applicant and his family will suffer against exercising its discretion to cancel his visa.

6. But the applicant is 25 years old. He is young enough to continue his studies in India or in another country if that is what he chooses and if his family are able to give him the necessary financial support in that endeavour. In the same vein, the applicant is young enough to establish a career in India if he must return. That reduces the weight the Tribunal places on the hardship claims the applicant has advanced.

7. In his letters to the Tribunal the applicant made various claims against his former migration agent, all of which the Tribunal has considered. Some of those claims raise hardship grounds. In his letters to the Tribunal dated 30 October 2019 and 2 February 2020 the applicant claimed that he had been cheated by his former migration agent and that he had not only lost the money he paid the agent but also time and career opportunities relying on an incompetent agent.

8. The Tribunal accepts that the applicant’s former migration agent gave the applicant incomplete or incorrect advice as set out in paragraph 45 above and that he was delinquent in his duties to the applicant as set out in paragraphs 49, 51, 65, and 66 above. The Tribunal accepts that the failings and delinquency of the applicant’s former migration agent have disadvantaged the applicant, and the Tribunal weighs that against exercising its discretion to cancel the applicant’s visa.

9. But the weight the Tribunal places on those matters is limited. The matters that weigh against the applicant most heavily in this review are that Stotts College cancelled his enrolment on 7 July 2016 causing him to fall into breach of condition 8202(2)(a) of his visa. Then the applicant remained in breach of that condition for nearly a year after that by not re-enrolling in a registered course. The applicant first sought to re-enrol in a registered course when he obtained the letter of offer from Cambridge International College dated 1 June 2017. That was the day before the delegate cancelled the applicant’s visa. Blame for all of those things cannot be attributed entirely to the applicant’s former agent. There is no evidence that the applicant’s former agent was responsible for Stotts College cancelling the applicant’s enrolment causing him to fall into breach of condition 8202(2)(a). The Tribunal accepts that the applicant’s former agent gave him incomplete or inaccurate advice as set out in paragraphs 45, 49, and 51 above. But as the Tribunal has already stated, the applicant had ultimate responsibility for knowing the conditions of his visa and ensuring that he remained within them. Assuming (as the Tribunal does) that the applicant intended to come back into compliance with condition 8202(2)(a) of his visa after his enrolment at Stotts College was cancelled, ultimate responsibility for doing that by enrolling in a registered course lay with the applicant.

Past and present behaviour towards the Department   

1. There is no evidence before the Tribunal that the applicant has not cooperated with the Department. The Tribunal has weighed that against exercising its discretion to cancel the applicant’s visa.

Whether there would be consequential cancellations under s. 140

1. This consideration is not relevant.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

1. The applicant is currently on a bridging visa E (class WE subclass 050) pending the outcome of this review.[23] Given the Tribunal has decided to affirm the delegate’s decision to cancel the applicant’s visa, in the absence of the minister granting the applicant another visa, he will not have authority to remain in Australia. The applicant will now have the opportunity to depart Australia voluntarily. If the applicant does not leave voluntarily he will be liable to detention under s. 189 of the Act and possible removal action under s. 198. Although detention and removal action will come about by the applicant’s failure to leave voluntarily and are not a necessary consequence of the cancellation decision, in this review, the Tribunal has taken into account the possibility of detention and removal action against the applicant and weighed that against exercising its discretion to cancel his visa.

   [23] Applicant’s letter to the Tribunal dated 30 October 2019 attaching visa grant notice dated 14 October 2019.

2. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others in Australia. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits what visa applications the applicant can make whilst onshore. The Tribunal has taken that potential limitation on the applicant’s future visa applications actions into account and weighed that against exercising its discretion to cancel the applicant’s visa.

3. The cancellation of the applicant’s visa will attract the application of Public Interest Criteria 4013. PIC 4013 will operate to mandate that any visa application made within three years of the applicant’s visa being cancelled will be refused unless one of the stated exceptions apply.

4. The Tribunal has considered that potential restriction on the applicant’s future Australian visa applications and weighed that against exercising its discretion to cancel this visa. The Tribunal does not have sufficient evidence before it to assess whether the applicant is likely to avail himself of an exception to the operation of the PIC such as compelling or compassionate circumstances justifying a further visa grant. But the Tribunal has taken into account the possibility that the applicant will not be able to make out an exception to the operation of the PIC and also weighed that against exercising its discretion to cancel the applicant’s visa.

5. But to be balanced against that is the plain intent of the PIC to restrict future entry into Australia by people affected with the stated risk factors. That must also be considered in this review.

   Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation

6. The Tribunal has considered Australia’s international obligations. On the evidence before the Tribunal, they are not engaged by the cancellation of the applicant’s visa.

Other matters

1. When a review such as this one is instituted, the applicant will ordinarily apply for and receive a bridging visa allowing the applicant to remain in Australia pending the outcome of the review. That did not occur in this case. The department’s records Integrated Client Services Environment reveal as late as 4 October 2019 the applicant was in Australia without a visa. The Tribunal does not know why the applicant remained in Australia for so long without a visa.

2. In its letter to the applicant dated 4 October 2019, the Tribunal under s. 359A of the Act:

   (a)Stated that according to the department’s records that it has been able to access, the applicant was in Australia without a valid visa pending the outcome of this review and was an unlawful non-citizen in Australia;

   (b)Stated it considered the information would be a reason, or a part of the reason, for affirming the delegate’s decision;

   (c)Stated that whether the applicant was currently an unlawful non-citizen in Australia was relevant to whether it should exercise its discretion to cancel the applicant’s visa; and

   (d)Invited the applicant to comment on or respond to the information by 18 October 2019 (which was subsequently extended to 1 November 2019) .

3. In its letter to the applicant of 20 January 2020, the Tribunal explained further that if it relied on the information that the applicant was in Australia without a visa for some time after his visa was cancelled and after he instituted this review, then depending on his explanation for remaining in Australia without a visa, it would weigh that information in favour of exercising its discretion to cancel his visa, and that would be the reason, or part of the reason, for affirming the delegate’s decision. 

4. In his letter to the Tribunal dated 30 October 2019, the applicant stated that:

   (a)He relied on his former migration agent to institute this review and obtain a bridging visa on his behalf;

   (b)His former migration agent failed to obtain a bridging visa and he did not know that he was in Australia without a visa after this review was instituted;

   (c)On receiving the Tribunal’s letter of 4 October 2019, he sent an email to his former migration agent (on 7 October 2019) about the agent’s failure to obtain a bridging visa (and other matters).[24] The agent did not respond; and

   (d)On 14 October 2019, he applied for and obtained a bridging visa E authorising him to remain in Australia pending the outcome of this review.[25] 

   [24] The applicant sent the Tribunal a copy of his email to his former migration agent of 7 October 2019.

   [25] The applicant sent the Tribunal a copy of his bridging visa E grant notice dated 14 October 2019.

5. In his letter to the Tribunal dated 2 February 2020 the applicant repeated his claim that he had relied on his former migration agent to institute the review and obtain a bridging visa on his behalf.

6. The Tribunal accepts that the applicant relied on his former migration agent to institute this review on his behalf and obtain a bridging visa for him pending the outcome of this review. The Tribunal accepts that the former agent failed to obtain a bridging visa for the applicant, and that the applicant did not know he was in Australia without a visa before receiving the Tribunal’s letter of 4 October 2019. The Tribunal accepts that the applicant remaining in Australia without a visa after this review was instituted was not his fault and responsibility for the omission to obtain a bridging visa lies at the feet of the agent. On discovering that he was in Australia without a visa the applicant acted quickly and obtained a bridging visa on 14 October 2019. He is now in Australia lawfully.

1. Accordingly, the Tribunal does not weigh against the applicant his stay in Australia without a visa between 2 June 2017 when the delegate cancelled his 573 visa and 14 October 2019 when he obtained his bridging visa. The Tribunal does not consider the applicant’s stay in Australia without a visa during that time to be the reason, or part of the reason, for affirming the delegate’s decision. The Tribunal has determined this review as though the applicant was in Australia on a bridging visa immediately on instituting this review.

Conclusion on discretion

1. The Tribunal has considered the contents of all the documents before it carefully. It has considered all the matters in favour of exercising its discretion to cancel the applicant’s visa and all the matters that weigh against that outcome.

2. The Tribunal considers the applicant’s breach of condition 8202(2)(a) of his visa to be a substantial one. He was not enrolled in a registered course for about 11 months from 7 July 2016 and 2 June 2017.

3. The Tribunal has considered the applicant’s explanation for his enrolment at Stotts College being cancelled (health problems and the recent death of his father). The Tribunal has weighed that against exercising its discretion to cancel the applicant’s visa.

4. But on the evidence before the Tribunal, after the applicant’s health improved such that he was able to engage in study again, he did not resume his studies at Stotts College or enrol in another registered course to bring himself back within condition 8202(2)(a) of his visa. Instead, he completed the FMEDGE Course, which was not registered. The Tribunal still weighs the applicant’s completion of the FMEDGE Course against exercising its discretion to cancel his visa because it supports his claim that he wishes to remain in Australia to study. But the Tribunal would have weighed the FMEDGE Course more heavily in the applicant’s favour had it been registered. The Tribunal has also weighed in the applicant’s favour his claims against his former migration agent but the weight the Tribunal gives those claims is reduced. Although the Tribunal weighs the letters of offer the applicant obtained from Cambridge International College dated 1 June 2017 and the Technical Institute of Victoria dated 2 August 2019 against exercising its discretion to cancel the applicant’s visa (in the applicant’s favour), the applicant obtained the offers too late for the Tribunal to give them substantial weight.

5. The Tribunal has also weighed against exercising its discretion to cancel the applicant’s visa all the matters set out in paragraphs 47, 49, 51, 53, 57, 60, 65, 66, 72, 73, and 76 above.

6. But the Tribunal considers that, on balance, the matters that weigh against the Tribunal exercising its discretion to cancel the applicant’s visa do not outweigh the substantial breach by the applicant of condition 8202(2)(a) of his visa. The Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s 573 visa.

DECISION

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

   L. Hawas
   Senior Member

   ATTACHMENT

   Migration Regulations 1994

   …

   Schedule 8

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

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

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

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

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

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

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

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

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

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

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

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