Chen (Migration)

[2023] AATA 3781

Chen (Migration) [2023] AATA 3781 (6 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Liujing Chen

CASE NUMBER:  2214719

HOME AFFAIRS REFERENCE(S):          BCC2022/2219279

MEMBER:Christine Kannis

DATE:6 November 2023

PLACE OF DECISION:  Perth

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

Statement made on 06 November 2023 at 8:11am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – mental health issues – applicant’s difficulty changing courses – several course cancellations – poor academic progress – decision under review affirmed       

LEGISLATION

Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03

CASES

Liu v MIMIA [2003] FCA 1170

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 5 October 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her 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. A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.

4. The applicant appeared before the Tribunal on 3 October 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. 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

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

   Did the applicant comply with condition 8202?

7. On 24 April 2020, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.

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

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

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

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

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

9. The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

10. In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a full-time registered course.

11. Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]

    [1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).

    [2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.

12. The information from PRISMS shows that the applicant was not enrolled in a registered course from 29 July 2020 to 26 August 2022.

13. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 29 July 2020 until 26 August 2022 and the Tribunal finds that she breached condition8202(2)(a) of her visa.

14. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.

    Consideration of the discretion to cancel the visa

15. 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’, as set out below.

16. On 15 August 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 29 July 2020 and had therefore failed to comply with condition 8202(2)(a) of her visa.

    Response to NOICC

17. On 26 August 2022, the applicant responded to the NOICC in a submission from her registered migration agent and provided the following information:

    ·She came to Australia in 2015 and studied the University of Western Australia Foundation Program which she finished around the end of 2016.

    ·Between the end of 2016 and 2019, she studied between 2 courses decided by her parents and the education agent, namely Commerce and Built Environment courses. These courses were not her choice of study. As the only child in the family, she reluctantly followed her parents’ choice.

    ·She attended classes between January 2017 until around 2019. She had requested a transfer to a Health Sciences course and Psychology because she was interested in health care and planned to become a Psychologist. The education agent did not allow the transfer and as a result she began to isolate and was not able to catch up on classes. She thought of suicide and started to fail in the majority of classes.

    ·She became emotionally unstable and one day in February 2019, her depression was so severe that she intentionally rolled down the staircase with the aim to end her life. She felt no one could understand her and she was being forced to study something not of her choice. The fall caused serious injury to her right leg requiring surgery. She immediately flew to China for surgery and treatment. On discharge she returned to Australia in March 2019, with a visit back to China for medical follow-up.   

    ·At this point her request to change course to Human Sciences was still refused by her parents and the education agent. She again enrolled in a Diploma and Degree of Built Environment/Architecture in February 2020.  She became depressed with suicidal thoughts after enrolment in these courses. Around the time she commenced the Diploma of Built Environment, COVID-19  occurred and Western Australia was declared a State of Emergency. At this time she was trying to reach out to various medical centres for help, but none could assist as priority was given to managing COVID-19. During these periods, she was not attending classes due to her mental situation, isolation and COVID-19 restrictions.

    ·The West Australian government began to ease restrictions in July 2020 and she immediately attended a mental health care specialist in August 2020. She was referred to a Clinical Psychologist to manage her depression. She continued medication prescribed by Dr Alex Koh (a mental health GP) which can occasionally cause side effects such as drowsiness and tiredness.

    ·The sole reason for her absenteeism from classes since August 2020 was because of her mental instability. She was afraid of going back to being suicidal and depressed and meeting people and lecturers in a course she does not like.

    ·Her medical conditions are largely caused by her parents and the education agent, escalated further by the non-availability of medical professionals to treat her depression and mental health during the COVID-19 lockdowns.

    ·She apologises to the Department for her negligence in not complying with condition 8202. She tried numerous times to seek help but COVID-19 pandemic factors, low self-esteem with self-isolation and mental instability limited her reaching out for help.

    ·After receipt of the NOICC, she enrolled in something she has always wanted to study. She had a frank discussion with her parents and received their support to pursue something related to Human Sciences. On 17 August 2022, (2 days after receiving the NOICC), she enrolled in a Diploma in Human Science and Bachelor Degree in Psychology. She paid the fees on 18 August 2022 and received the CoE. She is confident she can complete the study with the aim to register as a Psychologist to serve the larger community of Australia.

    ·She apologises for breaching the visa condition given her mental health and depression from period 2019 to 2022. She requests the chance to complete her studies and become a Psychologist. She is confident that with the current ongoing professional medical support and the opportunity to now do the course she wants, she will be able to successfully complete her education journey in Australia.

18. At the time of responding to the NOICC, the applicant provided documentation which included:

    ·Certificate of Completion of Foundation Program course dated 19 December 2016;

    ·Medical evidence in relation to a right knee injury and treatment in 2019;

    ·CoE for Bachelor of Applied Science (Architecture) course created on 4 February 2020;

    ·Tax invoices from Northbridge Medical dated 8 September 2020, 6 October 2020, 3 November 2020 and 1 December 2020;

    ·Letter dated 3 November 2020 from General Practitioner, Dr Kang-Fui Koh, stating he has treated the applicant’s medical condition since 4 August 2020 and that her medication can cause side effects and may interfere with her studies and assignment completion;

    ·Referral dated 4 August 2020 from Dr Koh to Clinical Psychologist Ms Athalie Phau referring the applicant for counselling and psychological support and stating she was not on any current medications;

    ·Screenshot from Prosper Health Collective web page for profile of Ms Athalie Phau;

    ·Western Australian government  COVID-19 coronavirus: State of Emergency Declarations information and information on the impact of COVID-19 on lifestyle;

    ·CoEs for a Diploma of Health Science and Bachelor of Psychology courses, both created on 26 August 2022; and

    ·Curtin College Academic transcript for the applicant’s Architecture and Commerce course.

    Evidence provided prior to the hearing

19. The following additional documents were provided prior to the hearing:

    ·CoE for Bachelor of Commerce course created on 1 May 2015;

    ·CoE for University of Western Australia Foundation Program course created on 13 April 2016.

    ·CoEs for Diploma of Built Environment and Bachelor of Applied Science (Architectural Science) courses created on 31 March 2017;

    ·Document indicated to be a certified translation from Chinese to English (original not provided) consisting of messages dated between 19 October 2018 and 6 September 2022;

    ·CoEs for Diploma of Commerce and Bachelor of Commerce courses created on 5 November 2018;

    ·SKG Radiology report dated 18 February 2019 in relation to an MRI of the applicant’s right knee;

    ·Certified and translated medical evidence dated in 2019 in relation to the applicant’s right knee injury and treatment in China;

    ·CoEs for Diploma of Built Environment and Bachelor of Applied Science courses created on 4 February 2020; and

    ·Timeline of the applicant’s study, travel and health during the period from 2015 to 2022 which included the following:

    oIn  2018, she felt that she was not suitable to study Architecture after an academic year. She requested her agent help her to transfer schools but the college wouldn’t issue her a release letter and advised her to continue with the Commerce course.

    oIn 2019, she probably resisted going to school and contacting people around January. In February 2019 she suffered a knee injury when she fell down stairs and she travelled to China for surgery. She returned to Australia but travelled back to China for a check-up on her knee. She returned to Australia but travelled back to China for another check-up because her knee hurt.

    oIn September 2019, she travelled to Bali for a few days to relieve pressure.

    oIn 2020, she started studying a Diploma of Built Environment. Due to COVID-19 (plus lockdown), her condition was getting serious, and she couldn't focus on studying. Her GP started managing her depression and anxiety and she started taking medicines on his advice.

    oIn 2021, she couldn’t concentrate on studying. She considered resting at home until her condition subsided.

    oIn 2022, she felt her condition had improved in the first half of the year, and she planned to return to campus in the second half of the year.

    Evidence at hearing

20. The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of her enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from her PRISMS enrolment record, she was enrolled in the following courses of study:

    a.She was enrolled in a University of Western Australia Foundation Program course which she finished on 16 December 2016.

    b.She was enrolled in a Bachelor of Design course which was cancelled on 28 February 2017 due to Non-commencement of studies.

    c.She was enrolled in a Diploma of Built Environment course which she finished  on 26 January 2018.

    d.She was enrolled in a Bachelor of Applied Science (Architectural Science) course which was cancelled on 15 March 2018 due to Non-commencement of studies.

    e.She was enrolled in a Diploma of Built Environment course which was cancelled on 5 November 2018.

    f.She was enrolled in a Diploma of Commerce course which was cancelled on 20 March 2019 due to Student Notifies Cessation of Studies.

    g.She was enrolled in a Certificate IV in Business course which was cancelled on 13 November 2018 due to Non-commencement of studies.  

    h.She was enrolled in a Bachelor of Applied Science (Architectural Science) course which was cancelled on 5 November 2018 due to Non-commencement of studies.

    i.She was enrolled in a Diploma of Built Environment course which was cancelled on 29 July 2020 due to Unsatisfactory Course Progress.

    j.She was enrolled in a Bachelor of Commerce course which was cancelled on 20 March 2019 due to Non-commencement of studies. 

    k.She was enrolled in a Bachelor of Applied Science (Architectural Science) course which was cancelled on 29 July 2020 due to Non-commencement of studies.

21. The Tribunal explained to the applicant that this information was relevant because it indicates that from 29 July 2020 until she received the NOICC, she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering her purpose for remaining in Australia.

22. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to her PRISMS enrolment records. The applicant did not dispute the PRISMS record.

23. The Tribunal asked the applicant about her fall in February 2019. She said she was climbing a staircase and because she was not in a good place mentally, she missed a step and fell. Noting that the response to the NOICC stated that she intentionally rolled down the staircase with the aim to end her life, the Tribunal asked her whether the fall was deliberate. In response she said she was stressed at the time but she could not provide a definite answer as to whether the fall was deliberate or accidental because at the time she was a mess and it happened more than 2 years ago.

24. The Tribunal asked the applicant whether she sought treatment for mental health in 2019 in China or Australia. In response, she said she did not seek mental health treatment in China because she did not want her family to know about her emotional problems.

25. In response to the Tribunal asking the reason for her mental health problems in 2019, the applicant said the main reason was the courses she studied. She said many of the assignments required teamwork and she found it difficult to work with others, She also said she wasn’t very confident because of her limited English language skills and because the other students achieved better results. She said this resulted in her having low self-esteem.

26. The applicant conceded that she did not undertake any study from at least July 2020 and said this was because she was unable to focus on her study due to her poor mental health.

27. The Tribunal asked the applicant to clarify the information provided in her NOICC response that she tried numerous times to seek help but she was limited by COVID-19 and her mental instability. The applicant told the Tribunal that in 2020 she attempted to contact medical centres with a practitioner who spoke Chinese/Mandarin. She located a General Practitioner in Northbridge and first attended the centre in August 2020 for treatment for her insomnia and unstable emotional mood. She said she was prescribed medication to stabilise her mood and help her sleep. The General Practitioner referred her to a Psychologist however when she called to make an appointment, she was advised there was a waiting list until January 2021. She decided not to make an appointment because she needed immediate help and waiting for an appointment would not be helpful. In response to the Tribunal asking whether she has ever seen a medical mental health practitioner for her mental health, she said she has not.

28. The applicant told the Tribunal that when she could not see a Psychologist without waiting a few months, she tried self-help by engaging in sporting activities and reading books. She said that the certified translation of messages from Chinese to English dated between 19 October 2018 and 6 September 2022  (see paragraph 19) was provided to the Tribunal to prove she suffered with depression over the years and had sought treatment. The Tribunal noted that these messages were not medical evidence.

1. In relation to the applicant’s claim that she was unable to study from at least July 2020 because of her mental health problems, the Tribunal asked her whether she sought a deferment of study on compassionate grounds. In response, she said she did not because she considered the college was the source of the problems causing her stress and she did not want to make contact with the college, even by email.

2. The Tribunal put to the applicant that she would have known from July 2020 until she received the NOICC, that she was no longer enrolled in a course and was not abiding by the conditions of her visa. In response, the applicant conceded that she was aware of her non-compliance but said she was not functioning well mentally. The Tribunal asked the applicant whether she contacted the Department when her enrolment circumstances changed. She said she did not contact the Department because she was not aware her visa conditions required her to do so. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.

3. The Tribunal asked the applicant about her enrolment in a registered course a few days after she received the NOICC. She told the Tribunal she had not wanted to return to study until she was ready because she did not want her mental health to deteriorate. She said she had planned to start studying in the second half of 2022 and her enrolment in August 2022 was not a hasty response to the NOICC. The applicant said prior to receiving the NOICC, she had been on medication for at least a year, the dosage had been reduced and she had gained some confidence in her ability to study.

4. Noting that she was not undertaking study from at least July 2020, the Tribunal asked the applicant how she spent her time. She said she stayed at home and slept. In response to the Tribunal asking whether she worked during the period from 29 July 2020 to 15 August 2022, she said sometime in 2021 she started working in a café 4 days a week from 10.00 am until 4.00 pm. She said she also worked doing some freelance editing of online videos.

5. Noting that the NOICC response and information she provided to the Tribunal prior to the hearing referred to her mental health problems being caused by studying courses her parents wanted her to study, the Tribunal asked her to clarify this information. In response she said that when she travelled to Australia, her parents made her study a Commerce major. She said she was not interested in this course and after some time, she thought she would be suited to drawing and painting and so she transferred to Architecture. She said she realised the other Architecture students were more gifted than her and her confidence suffered. She said was the trigger for her mental health problems.

6. The applicant told the Tribunal that she came to Australia to study. She said she has a compelling need to remain in Australia because she wants to complete a Psychology degree.

7. In response to the Tribunal asking the applicant about the hardship that may be caused by cancellation of her visa, she said if she leaves Australia she will feel regretful and sorry because her parents spent time and money providing for her and she hasn’t completed any study. She said she will feel she has failed.

8. Prior to the hearing, the Tribunal received documentation evidencing proceedings commenced in the Magistrates Court of Western Australia by the applicant’s former migration agent and Judgement for the Claimant in the sum of $8,250 plus Court fees dated 23 August 2023. Essentially the claim was for unpaid fees.  Utilising the s 359AA of the Act procedure, the Tribunal put this information to the applicant. She said she defended the  proceedings and the reason for the unpaid fees was because she had researched other migration agents and found her migration agent’s charges were unreasonable.

9. Utilising the s 359AA of the Act procedure, the Tribunal put the following information contained in the Claimant’s Statement of Intended Evidence of A Witness to the applicant:

   ·She requested the migration agent to check if she qualifies for a Protection visa; and

   ·She said that even if the court orders her to pay, she will just go the airport and fly home to China without paying as there is nothing the Australian court can do to her.

10. In response, the applicant told the Tribunal that the migration agent had fabricated that she had made the Protection visa request and the statement that the Australian court cannot make her pay if she returns to China. She said the statement defamed her.

11. The applicant claimed that she defended the proceedings. There were no documents before the Tribunal in relation to her defence or the Court’s reasons for judgement. Accordingly, the Tribunal places no weight on this evidence in its determination of this matter.

12. The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.

    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. The purpose of the applicant’s visa was to enable her to study. She was not enrolled in a course of study for a period of 2 years 1 month. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.

14. The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, she said wants to complete a Psychology degree. The Tribunal notes that she had not commenced this study  prior to receipt of the NOICC and enrolled in the course after receipt of the NOICC. The Tribunal does not consider this study constitutes a compelling need.

15. The applicant’s non-engagement in the study for which her visa was granted, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.

    The extent of compliance with visa conditions

16. The applicant has not complied with condition 8202 of her student visa because she failed to maintain enrolment in a full-time registered course of study from 29 July 2020 until 26 August 2022.  There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.

17. The applicant’s non-compliance for an extended period of 2 years 1 month weighs in favour of visa cancellation.

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

18. The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to her because she has not completed her study in Australia.  The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.

    Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control

19. The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant said she ceased study because she was suffering from mental health problems. Apart from the referral letter dated 4 August 2020, there was no medical evidence in relation to the applicant’s mental health problems. She told the Tribunal she did not make an appointment with a Psychologist because the waiting list was too long. She said she tried self-help and worked towards reducing her medication.

20. The applicant told the Tribunal that the reason she did not seek a deferment of studies on compassionate grounds was because she considered the college was the source of her mental health problems. As noted, minimal medical evidence in relation to the applicant’s mental health was provided.

21. The Tribunal accepts that the applicant suffered from mental health problems in 2020 and attended her General Practitioner for medication. She said she did not enrol in a registered course prior to receipt of the NOICC because she was not mentally ready.  However, there was nothing before the Tribunal to indicate that she received any medical treatment in 2021 or 2022 and her evidence at the hearing was that she commenced working 4 days a week in 2021. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder.

22. When the Tribunal put to the applicant that she would have been aware that she wasn’t complying with a condition of her visa during the 2 years 1 month  she remained in Australia as the holder of a student visa and wasn’t studying, she conceded that she was aware and said she was not functioning well mentally.

23. The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 29 July 2020.  The applicant did not attempt to enrol in a course in 2021 or 2022. She said she suffered from mental health problems during that time however as noted, minimal medical evidence was provided to substantiate the claim. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.

    Past and present behaviour of the visa holder towards the Department

24. There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.

    Whether there would be consequential cancellations under s 140

25. There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.

    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

26. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.

    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

27. There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.

    Any other relevant matters

28. The Tribunal is not aware of any other considerations in relation to the cancellation.

    Conclusion

29. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

30. The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Christine Kannis
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:

    (a)a Defence student; or

    (b)     a Foreign Affairs student; or

    (c)      a secondary exchange student.

    (2) A holder not covered by subclause (1):

    (a)      must be enrolled in a full time registered course; and

    (b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and

    (c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:

    (i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;

    (ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.

    (3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:

    (a)     is enrolled in a course at the Australian Qualifications Framework level 10; and

    (b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.