HOSSAIN (Migration)

[2019] AATA 5039

HOSSAIN (Migration) [2019] AATA 5039 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MD MIR HOSSAIN

CASE NUMBER:  1706540

HOME AFFAIRS REFERENCE(S):           BCC2017/952323

MEMBER:Justin Owen

DATE:11 November 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 11 November 2019 at 4:38pm

CATCHWORDS
MIGRATION – cancellation – Higher Education Sector (class TU) – Subclass 573 (Student) (Temporary) – non-enrolment in registered course – mother’s chronic illness – applicant’s mental health – break from study and difficulty re-enrolling – no attempt to defer studies – factors for and against cancellation – no evidence of mental health treatment – re-engaged with study and now close to completion – plans for business in home country – decision under review set aside

LEGISLATION

Migration Act 1959 (Cth), s 116(1)(b)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 23 March 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The applicant is a national of Bangladesh born 1 January 1989.  His Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa was granted on 27 October 2015 and was subject to condition 8202.  The visa had a stay period with a stay period until 30 September 2017.  On 14 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he had ceased to be enrolled in a registered course between 16 August 2016 and 20 March 2017.  The applicant responded to the NOICC on 21 March 2017.  On 23 March 2017 the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa.      

3. The delegate cancelled the visa on the basis that the applicant has not complied with the requirements of condition 8202 (2)(a) of the 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.

4. The applicant appeared before the Tribunal on 7 November 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Did the applicant comply with Condition 8202?

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 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).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. When making the application for review, the applicant supplied the Tribunal with a copy of the delegate’s decision of 23 March 2017. The decision record states that the Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study between 16 August 2016 and 20 March 2017.  At the time of the delegate’s decision of 23 March 2017 the applicant therefore had not been enrolled for a total of about 7 months. 

11. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 16 August 2016 and 20 March 2017. 

12. The Tribunal in its questioning noted that the decision record the applicant provided stated that in the applicant’s response to the NOICC, he did not dispute that there were grounds for cancellation. 

13. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

14. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers.’

15. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia.

16. The Tribunal considers that the purpose of a Student visa is to enable the visa holder to study in Australia.  The applicant in response to the Tribunal’s questions said he travelled to Australia to study and he had a compelling reason to remain in Australia to complete his current studies and possibly enrol in a diploma in the fashion field before returning to Bangladesh.  He pointed out that he already had completed tertiary studies in fashion in Bangladesh but would appreciate the opportunity to complete a course in Australia in order to acquaint himself with Western fashions before returning to Bangladesh to establish his textiles manufacturing business.  

17. The Tribunal notes the applicant has been in Australia on a variety of Student higher education visas since 2009.  In that decade he has successfully completed a Bachelor of Commerce majoring in Accounting at Australian Catholic University; an Advanced Diploma of Accounting; various General English courses and he has almost completed a Master of Business Administration whilst he is part of the way through a Master of Professional Accounting.  

18. The Tribunal notes the applicant’s NOICC response of 21 March 2017 (D1, Folio. 20) where he stated he had been doing well in his studies since his arrival in Australia in 2009.  He has argued that his studies were adversely interrupted by a chronic illness of his mother that had a subsequent impact upon his own ability to remain focused on his studies.  He writes that he had been away from his family for almost eight years at this point and his mother’s illnesses had a ‘huge psychological impact’ on him.  This he argues made it difficult for himself to manage his studies and he intended to take a break from study in Semester 2 of 2016 before re-enrolling in Semester 1 of 2017.  The applicant states that he attempted to re-enrol in his study program in Semester 1 of 2017 but was advised by his education provider that they had no availability remaining for him to recommence his studies.

19. The applicant pointed out that after being refused re-enrolment due to a lack of capacity by his education provider, he immediately sought admission with another education provider (GCA) in a Master of Business Administration course of study.  At the Tribunal hearing he stated that his original MBA course provider (Holmes Institute) subsequently offered him re-enrolment in his MBA in the second semester of 2017.  The applicant decided to then return to his original MBA course provider and recommence his MBA studies then.  The applicant has been enrolled continually in the course since this time.   In 2019 he also concurrently commenced a Master of Professional Accounting at the Holmes Institute. 

20. The Tribunal questioned the applicant on his failure to remain enrolled in a registered course of study between August 2016 and March 2017.  In the absence of any corroborative evidence the Tribunal does not accept the applicant’s claims that his mother’s chronic illness precipitated a situation whereby the applicant was unable to focus on his studies due to the adverse impact it had on the applicant’s psychological and mental health.  There is no evidence before the Tribunal of any professional assistance or help the applicant sought to assist his management of these alleged issues.  The applicant admitted that he did not seek a deferral and he did not contact the Department to inform them of his change in circumstances as required. 

21. The Tribunal finds the reasons the applicant has given for his failure to remain enrolled for a seven month period in 2016/2017 lack substance given his lack of corroborative evidence and his failure to keep the Department and his education provider fully informed of his situation.  The Tribunal does however accept that not all individuals facing mental and psychological health issues seek professional care and assistance.  The Tribunal accepts the evidence that the applicant provided the delegate (D1, Folio. 7-10) that his mother was suffering from chronic kidney related issues and on the basis of the applicant’s testimony is prepared to concede his mother’s health issues did have some impact upon his psychological wellbeing.  That would be an understandable situation to any individual with an seriously ill parent.  The Tribunal does not however accept on the very limited evidence before it that the impact was so significant that it precluded the applicant from either remaining enrolled or, if he was unable to do so, seeking a deferral from his education provider or informing the Department of his circumstances.    

22. The Tribunal notes that the applicant did in March 2017 attempt to re-engage with his studies after being excluded by his education provider.  The applicant immediately enrolled in an MBA course at another education provider (starting in May 2017) and his original education provider subsequently offered the applicant the opportunity to reenrol in his MBA the following semester when it had capacity.  The Tribunal notes the applicant has remained an active student since the cancellation of his Student visa and has now reached the point where he has completed over 90% of his MBA course and at the time of decision is awaiting the imminent release of the results of his final subject ‘Economics for Business’ which he has recently completed.  The applicant has also completed over 40% of his Master of Professional Accounting which he expects to complete in around a year. 

23. The Tribunal considers the applicant has illustrated a compelling need to remain in Australia to complete his courses.  In the two and a half years since his cancellation the applicant has worked diligently – though not always successfully – in completing his subjects in order to graduate with an MBA.  The applicant’s previous academic record which included a Bachelor of Commerce at a well-recognised and respected Australian university indicates in the Tribunal’s opinion a desire to study and complete his education.  The Tribunal found the applicant to be honest in his oral testimony where he discussed the challenges he faced in passing some subjects previously and the assistance he had received from his university and other education providers.  The Tribunal considers it would be a regrettable situation if the applicant was compelled to depart Australia prior to the completion of his MBA and his Master of Professional Accounting.  Given the Tribunal accepts his oral testimony that he has a strong desire to work in the Bangladeshi textiles and fashion industry and to take advantage of export opportunities, the Tribunal considers it would be an onerous situation to cancel the applicant’s visa and potentially extinguish his studies at this point where he is nearing the conclusion of his time as a student and at the point of graduation. 

24. The Tribunal asked the applicant if he had any other reason for travelling to and remaining in Australia such as permanent emigration.  The applicant said he did not.  He pointed out that his business plans had a much better chance of success in Bangladesh than Australia due to much cheaper business input costs and his plan was to return to Bangladesh.  The Tribunal notes the applicant’s claims that completing his education, not permanent emigration, is the purpose of his travel to Australia.  The Tribunal notes this statement by the applicant and draws it to the delegate’s attention should the applicant attempt to utilise his Student visa as an avenue to a permanent residence visa in the future.  The Tribunal has given considerable weight to the applicant’s pronounced commitment that the purpose for his travel to Australia is his studies and his compelling need to complete his studies is so he can return offshore to establish his business.  The Tribunal notes that the applicant has illustrated a commitment to study in Australia for a significant period of time at the higher education level and gives this positive weight.   The Tribunal has taken the applicant on his oral testimony to the hearing concerning his commitment to complete his studies and then return to Bangladesh.  It would be disappointed if in the future this was to prove not to be the case and the temporary Student visa was to be utilised for the purposes of delaying departure from Australia for permanent migration purposes.   On the evidence before it concerning the purpose of the applicant’s travel to and stay in Australia and whether the applicant has a compelling need to travel to or remain in Australia, the Tribunal weighs this factor strongly against cancelling the visa. 

25. The Tribunal has considered the extent of the applicant’s compliance with visa conditions. The Tribunal considers the applicant’s failure, as outlined in the decision record, to comply with the conditions of his visa by not being enrolled in a registered course of study for over seven months to be reasonably significant.  The Tribunal notes from the applicant’s oral testimony that he arrived in Australia some years ago and has held multiple visas.  The applicant in his oral testimony stated that it had not been explained to him that it was a condition of his Student visa that he remain enrolled in a registered course of study: he admitted he had received a letter from the delegate informing him of the grant of his visa but he didn’t read the detail of the correspondence and only became aware that his enrolment was in jeopardy after receiving the NOICC in March 2017.  The Tribunal does not accept these claims and considers the applicant was experienced with the visa requirements and obligations for a visa holder.  The Tribunal is of the opinion the applicant was aware he was not complying with the conditions of his Student visa whilst he was unenrolled in a course of study.  The applicant stated in his oral testimony to the Tribunal that after he was no longer enrolled he had decided to return home to Bangladesh.  He states that he only changed his mind after being urged to resume his studies by his parents.  The applicant claims this plan to return to Bangladesh meant that had not been focused on communicating with the Department or ensuring he was compliant generally with his visa conditions. The Tribunal notes the applicant had an obligation to keep himself informed and updated as to his immigration status.  The Tribunal considers the applicant’s non-compliance with his visa conditions to be reasonably significant.  It does however take into account the applicant has been in Australia for a decade with no other record of adverse behaviour in relation to his compliance with visa conditions. The Tribunal also gives some limited weight to the applicant’s claim he was planning to depart Australia so did not regularise his visa status more readily.   On the evidence before it the Tribunal weighs this factor slightly in favour of cancelling the visa. 

26. The Tribunal has considered the degree of hardship that may be caused to the applicant and his family should his Student visa be cancelled.  

27. In relation to hardship that may be caused to the applicant himself, the applicant said cancellation would be very damaging to him.  He talked about the lost opportunities, particularly being so close to now completing his MBA and still completing a Master of Professional Accounting.  The Tribunal asked if he could not complete his studies off-shore.  The applicant stated the calibre of the courses offered in Bangladesh were not of the same standard as Australia.   The Tribunal has some doubts as to the applicant’s arguments concerning hardship and his own educational situation.  The Tribunal notes that the applicant has previously completed a Bachelor degree at a recognised Australian university. The Tribunal notes that the applicant is not precluded from commencing or completing further studies off-shore.  The Tribunal notes his concerns about the quality of education in Bangladesh, yet the Tribunal considers the applicant has the ability to seek study opportunities elsewhere offshore if he is not satisfied with the quality of the Bangladeshi curriculum.  The Tribunal accepts that the applicant would prefer to remain in the Australian education system but that would not in its own right provide a reason for the Tribunal to overlook his failure to meet the conditions attached to his Student visa for over seven months in 2016-2017. 

28. The Tribunal nevertheless does in these specific circumstances have sympathy for the applicant’s expressed concerns pertaining to his current studies.  The Tribunal accepts that the applicant almost immediately attempted to regularise his enrolment after receiving the NOICC.  He has studied at the Masters level since May 2017 and made further progress to now being at the verge of completing his MBA.  He admits he has found aspects of his Masters degrees difficult and has sought and received assistance from the providers.  He has ‘dug in’ and pushed himself through his courses to the point he has almost successfully completed his MBA.  The Tribunal considers there would be real and tangible hardship to the applicant if his visa was to be cancelled and he were not able to complete his MBA and his Master in Professional Accounting when he is now so close to completion.  The Tribunal has less sympathy for his expressed plans to study fashion in Australia before departing home though it does note he has exhibited academic achievement in this area in Bangladesh at the higher education level so accepts he has a genuine interest in this field in his future endeavours.  The Tribunal considers the applicant will be caused genuine hardship should his Student visa be cancelled at this point in his educational journey.       

29. In terms of other areas of hardship in relation to himself, the applicant stated to the Tribunal that he does not have a wife or partner. 

30. The Tribunal has considered the hardship that might be caused to the applicant’s family in Australia.  The applicant stated he lived with his brother, sister-in-law and their children.  He enjoys a good relationship with his only sibling and their family.  The Tribunal accepts that the applicant would prefer to remain in Australia close to his family members but does not consider any separation would be particularly onerous.  The applicant retains the ability to remain in contact with his brother and his family through telephone and social media.  The Tribunal considers the hardship in relation to the applicant’s family in Australia is limited. 

1. The Tribunal has considered hardship in relation to the applicant’s parents.  He stated that cancellation of his visa would cause hardship for his family given they had invested so heavily in his education and his future.  He stated his parents would be very unhappy if his visa was to remain cancelled and he had to return to Bangladesh prior to completing his education. The Tribunal accepts that the applicant’s parents will be disappointed if the applicant’s Student visa is cancelled and he is unable to complete his Masters studies in Australia.  That is understandable, particularly for his parents given the sacrifice they have made to further their son’s education. Whilst recognising the disappointment, the Tribunal does not consider the hardship faced by his parents and extended family with the cancellation of his Student visa to be onerous or significant.  On the evidence before it relating to the degree of hardship that may be caused to the applicant’s family, the Tribunal weighs this factor in favour of cancelling the visa. 

2. The Tribunal concedes there is a limited degree of hardship to the applicant’s family should the applicant’s visa be cancelled.  The Tribunal does not consider that to be either significant or onerous.  The Tribunal does however consider there will be genuine hardship cause to the applicant should his visa be cancelled.  The Tribunal accepts that since receiving his NOICC the applicant has made a genuine attempt to regularise his status via committing to his higher education studies.  Whilst he has failed a few subjects, the applicant has nevertheless continued to progress through his MBA whereby he is on the precipice of completing the degree.  He is also working through a Master of Professional Accounting.  The Tribunal considers the applicant does have a genuine commitment to complete his higher education studies.  He successfully completed a range of degrees and diplomas previously and the Tribunal considers that he is focused on completing his studies and moving to the next stage of his life in the textile manufacturing and management industry.  The Tribunal recognises that the applicant’s parents have also invested significantly from a financial perspective in the applicant’s education.  The Tribunal accepts that the applicant will be caused genuine hardship should his Student visa be cancelled.     

3. On the evidence before it relating to the degree of hardship that might be caused to the applicant, the Tribunal weights this factor against cancelling the visa. 

4. The Tribunal has considered the circumstances in which the ground for cancellation arose.

5. At the Tribunal hearing the applicant conceded in oral evidence that he had not been enrolled in a registered course between 16 August 2016 and the delegate’s decision on 20 March 2017. The ground for cancellation arose due to the failure of the applicant to remain in a registered course of study for a total of over just over 7 months. 

6. The Tribunal has considered the medical documentation the applicant provided concerning his mother’s kidney-related health issues and accepts the applicant’s mother was receiving treatment for these issues at the time the applicant has claimed. 

7. At the hearing of 7 November 2019 the applicant outlined to the Tribunal the circumstances of the breach.  He said he was not enrolled in a course of study between August 2016 and March 2017 due to his mother’s health problems which had a subsequent impact upon his own mental and psychological health.  The applicant had not seen his mother for many years and her illness made him depressed and unhappy.  He said that on that occasion his academic performance fell away.  He claims he saw his GP in late 2016 who told him not to stress.  This had all happened after he had in 1^st semester 2016 successfully completed a reasonable amount of his MBA subjects.

8. The Tribunal asked the applicant if he sought a deferral from his education provider if he was feeling unable to successfully complete his studies.  The applicant states he did not as he had made up his mind to simply return home to Bangladesh so was not concerned with deferral.  He claimed to have made up his mind to return home until his brother and parents encouraged and convinced him to refocus his energies on his studies and complete his education.  He states this was one of the factors as to why he did not inform the Department of his change of circumstances. 

9. The Tribunal finds it unusual that there is no corroborative evidence of any treatment sought or received by the applicant, even from his GP during the period the applicant was not enrolled or anytime previous.  The Tribunal accepts that individuals may face mental and psychological health issues without seeking the assistance of a medical professional.  The applicant claimed at the hearing that seeking treatment was expensive and he instead received assistance from his education providers at Holmes that had helped him manage his stress and successfully complete his subjects.  In the absence again of any corroborative evidence the Tribunal gives the claims little weight.  The Tribunal notes the applicant told the hearing that he had never sought mental health treatment, counselling and had never had a mental health plan.

10. Given the paucity of evidence concerning the applicant’s claimed mental and psychological issues (notwithstanding the Tribunal’s acknowledgement that not all individuals facing depression and anxiety seek professional assistance and advice) and the general vagueness of the applicant’s explanation of the mental health challenges he faced, the Tribunal considers the applicant’s explanation for the circumstances in which the ground for cancellation arose is vague and superficial. The Tribunal accepts that his mother has suffered from heart-related health conditions, particularly in 2016.  The Tribunal accepts the situation caused the applicant a degree of stress and anxiety.  The Tribunal does not however consider the situation wholly justifies or mitigates his period of non-enrolment.          

11. The Tribunal notes that the applicant has been in Australia for a significant period of time and has experience with the Australian migration system and the obligations of visa holders..  The Tribunal reasonably expects the applicant by 2017 would have been aware of the conditions attached to his Student visa and does not accept his claim he had not read the detail of correspondence explaining the detail of his Student visa.  Indeed he had an obligation to do so as the visa holder.  Given the paucity of the evidence before the Tribunal pertaining to the psychological and mental health of the applicant at that time, the Tribunal also gives the applicant’s claims concerning his alleged depression and anxiety little weight.  Weighing against this however, the Tribunal notes the applicant’s claim that he was intending on returning to Bangladesh so was not focused on meeting the ongoing requirements of his Student visa.  The Tribunal also notes the applicant’s firm commitment to study since receiving the NOICC and considers he has shown a genuine commitment to his education since that period.       

12. On the evidence before it relating to the circumstances in which the ground for cancellation arose, the Tribunal weights this factor in favour of cancelling the visa.     

13. The Tribunal has considered the past and present behaviour of the applicant towards the Department.   The Tribunal notes the applicant responded to the Department’s s.119 letter and gives this some positive weight.  The Tribunal however notes however there is no evidence of the applicant contacting the Department to inform them of his change in circumstances in relation to his enrolment, though it notes the applicant’s claim in mitigation that he was intending to depart Australia until his parents and brother convinced him to remain and complete his studies.   On the evidence before it the Tribunal weighs this factor slightly against cancelling the visa. 

14. The Tribunal has considered whether there are persons in Australia whose visas would, or may be, cancelled under s140 as a result of the cancellation of the applicant’s visa. On the evidence before it the cancellation of the applicant’s visa would not result in the consequential cancellation of any dependent visa holders. Therefore any cancellation of the applicant’s student visa will not result in the automatic consequential cancellation of the visa of any other person under s140 of the Migration Act. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.  

15. The Tribunal has considered whether there are 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 of the applicant’s visa.  The applicant says he does not have any children. There is no information before the Tribunal which indicates that any cancellation would result in any breach of Australia’s international obligations.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.     

16. The Tribunal notes that the applicant will become an unlawful non-citizen if his visa is cancelled and may be liable for detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia.  He will also be subject to an s48 bar which will limit his options in applying for further visas in Australia.  The Tribunal notes that the applicant, if he were to apply for a further Student visa offshore, will be subject to Public Interest Criterion 4013 as a result of the cancellation and may not be granted a further Student visa for three years from this date.  The Tribunal however also notes that if his visa is cancelled, the applicant may be eligible to apply for a Bridging Visa E to allow him to remain in Australia to finalise any outstanding matters and visa applications that have been lodged.  On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the visa.

17. The Tribunal has found the circumstances of this review unusual.  The grounds for cancellation are clearly met and the Tribunal finds itself dissatisfied with the applicant’s explanation for the circumstances in which the ground for cancellation arose.  The Tribunal considers the applicant’s claims concerning his alleged psychological condition that led him to fail to remain enrolled are vague, unsubstantiated and non-specific.  Weighing up against this however is what the Tribunal considers is a genuine commitment to higher education and study that the applicant has exhibited for many years.  The applicant successfully completed a Bachelor degree majoring in accounting at a leading Australian university and completed an Advanced Diploma in Accounting.  The Tribunal gives significant positive weight to the applicant’s efforts to not only regularise his status and reenrol in his MBA as soon as possible in March 2017 but his commitment to completing his studies in the two and a half years since with not only the MBA but a Master of Professional Accounting.  The Tribunal found the applicant to be candid in his oral testimony to the challenges he has faced in completing his higher education degrees.  He has expressed strong remorse for failing to remain enrolled in the 2016-17 period and requested the opportunity to complete his studies.   The Tribunal considers it would be unfortunate after such efforts to cancel the applicant’s visa at this point in his higher education journey.  The Tribunal closely questioned the applicant about his future intentions in management in the textile and fashion industry and found his testimony – and how his studies are an integral part of this plan – persuasive.  The Tribunal considers the applicant’s compelling reason to remain in Australia through the completion of his studies and the hardship that would be caused to the applicant if he were not able to be provided the opportunity at this point narrowly but ultimately outweigh the circumstances in which the grounds for cancellation arose.       

18. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

19. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Justin Owen
    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.