Hussain (Migration)

[2019] AATA 6075

Hussain (Migration) [2019] AATA 6075 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Kashif Hussain

CASE NUMBER:  1620025

DIBP REFERENCE(S):  BCC2016/2970400

MEMBER:Rachel Westaway

DATE:9 October 2019

PLACE OF DECISION:  Melbourne

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 09 October 2019 at 10:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – genuine student – non-commencement, change of course, non-payment of fees, low attendance and cancellation of enrolment – no response to notice of intention to consider cancellation – English language levels required for courses – death of grandfather in Pakistan six days after applicant arrived in Australia – mental health – deferral of study granted but applicant not informed – continued attending classes, but struggled to concentrate and was unable to participate fully – victim of fraud and incorrect migration and education advice – relationship issues with family – education provider’s demands for payment of fees – treatment for mental health issues – enrolled in another course five days before visa cancelled – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(fa)(i)

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 November 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that the student is not or is not likely to be a genuine student. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 December 2017 to give evidence and present arguments and then on the 19 June 2019. The Tribunal hearings were conducted with the assistance of an interpreter in the Urdu and English languages.

4. The applicant was represented in relation to the review by his registered migration agent who attended both hearings.

5. 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

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Delegate’s decision

7. The applicant’s visa was cancelled on 21 November 2016. The delegate found that the applicant is not or is not likely to be a genuine student. The applicant was sent a Notice of Intention to Consider Cancellation (NOICC) however no response was received.

8. A summary of the issues leading to the cancellation include:

9. The applicant was granted a subclass 573 student visa on 16 January 2015 on the basis that the applicant intended to study an English course from 9 February 2015 to 19 April 2015 followed by a Bachelor of Business (Accounting) from 25 May 2015 to 21 May 2017. However the Confirmation of Enrolment (COE) was cancelled.  The English course and Bachelor of Business (Accounting) were cancelled due to non-commencement and change of course. The Bachelor of Business was cancelled sighting a deferment/suspension due to compassionate and compelling circumstances. The deferment applied to the period 25 May 2015 to 20 March 2016.

10. The applicant provided the Tribunal with a copy of the delegate’s decision which referred to PRISM records confirming the applicant was enrolled in a Certificate 4 in Marketing at Cambridge College from 9 February 2015 to 12 July 2015 instead of the English course which was the first course the student visa was issued for.

11. The delegate also identified that on 24 June 2015 Cambridge College issued the applicant with a notice pertaining to an impending cancellation due to non-payment of fees on 24 June 2015.

12. On 3 June a second notice was issued identifying the applicant’s attendance was below 85%. Consequently the applicant was deemed not to have met the academic requirements for the course and was reported as ‘not yet competent’.

13. The applicant also had a COE for a Diploma in Marketing at Cambridge from 27 July 2015 through to 14 February 2016 and a COE for a Bachelor of Business (Marketing) from 21 March 2016 to 24 December 2017 however as a consequence of not achieving competency in the Certificate 4 these enrolments were cancelled.

14. The delegate noted that from the time the applicant’s enrolments were cancelled on 25 August 2015 until 5 October 2016 when the applicant enrolled in a Bachelor of Accounting he has not undertaken any study and he has not been studying at a higher education level.

15. The applicant appears to have recommenced his studies and enrolled in a Bachelor of Accounting at Group Colleges Australia. The course runs from 24 October 2016 to 16 August 2019. The applicant provided the Tribunal with a receipt of payment of fees and a confirmation of enrolment to support this claim.

16. On face value and without a response from the applicant to the NOICC, the applicant appears to have had a range of issues leading the delegate to conclude that the applicant was not or might not be a genuine student.

    SUBMISSIONS

17. On Wednesday 6 December 2017 the agent provided the Tribunal with a submission on behalf of the applicant. The submission contained an explanation detailing the time frame in which the issues leading to the cancellation occurred. The Tribunal has considered the material which can be summarised as follows:

18. The applicant arrived in Australia on 5 February 2015 to undertake a package course incorporating a diploma and degree however he claims that his study pathway was changed prior to his arrival in Australia by his education agent. He did not meet the required IELTS level for the Bachelor of Accounting so subsequently decided to undertake a Bachelor of Business (Marketing). This decision was made prior to leaving Pakistan and arranged by the education provider. The applicant believed that the new option which included a Certificate 4, Diploma and Bachelor was a package course and was at the appropriate level for the visa.

19. Soon after the applicant commenced his course in Australia his grandfather died and a death certificate was supplied to support this. The date of death is listed as 11 February 2015 and the reason for death was listed as ‘natural’. This was 6 days after the applicant had arrived in the country. The applicant claims he felt depressed and he lost his focus. Around April 2015 the applicant attempted to make contact with the welfare officer at the college and his name was Randall. He requested a deferment. He believed that the college would contact him regarding confirmation of the deferral. PRISMS records show a deferral was granted by the education provider, although the applicant claims he was not informed. He claims to have been left confused and uncertain what to do about his studies. The deferral was granted from 25 May 2015 to 20 March 2016. The applicant argued it is difficult to understand that a period of deferral is deemed a gap in studies. He was granted deferment based on compelling and compassionate circumstances.

20. He confirmed that he attempted his studies whilst waiting for the confirmation of deferment in the Certificate 4 in Marketing. Given his state of mind he claims his attendance was low and he struggled to concentrate and he was assessed as not yet competent. The applicant claims his studies were affected by circumstances beyond his control. The natural consequence of the applicant’s Certificate 4 COE being cancelled was that the Diploma and the Bachelor course were also cancelled on 25 August 2015.  The applicant believed the deferment would happen but because he never received it he continued to attend the college but was unable to participate fully. Official records show that the applicant was granted a deferment even though he was never informed. He stated that he believed the Department would have been notified automatically about a change in his course and also his deferment when it was granted.

21. He stated that his mental health suffered in the early part of his time in Australia. He was the victim of two fraud related incidents which impacted on his mental health, finances and ability to concentrate. These commenced in May 2015 and concluded in July 2017. The applicant provided some detail of these events. One related to an ill-informed investment and the other to incorrect migration and education advice.

22. Following the cancellation of the COE at Cambridge College he attempted to enrol in the Bachelor of Accounting. He provided receipts for the enrolment at Group College Australia which was in October 2016. He was unaware of the need to have IELTS 6 and after paying $1600 he could not commence as his English levels were not sufficient. He claims he was given incorrect advice and believes he was taken advantage of financially. He claims this contributed to his frustration and his mental health declined. He claims that this attempt to study at Group College Australia occurred before his NOICC was issued and the cancellation occurred and indicates his genuine desire to study.

23. He provided receipts from his doctor in November 2016 and he was referred to a psychologist. The applicant did not want to tell his friends or family about his mental health issues and he was experiencing relationship issues with his family. His mental health condition was aggravated by his education provider’s demands for payment of fees. He provided two doctors receipts from November 2017 as well as a psychologist’s report dated 5 December 2017. The applicant claims his mental health at the time was poor.

24. The applicant has suffered immensely from his negative experiences. If the applicant cannot continue to study he will confront further personal issues and shame would be brought to his family. He fears his mental health will deteriorate.

25. He claims he received the Notice of Intention to Consider Cancellation dated 3 November 2016 but did not respond because he was confused and disappointed by the actions of his education provider.

26. The submission stated that the applicant wants to study a Bachelor of Accounting and have an international qualification so that he can obtain a job in Pakistan with higher pay and status and make his family proud. However given his visa was cancelled he was unable to enrol in any other courses.

27. The following documents were submitted on 6 December 2017:

    ·     VEDA records;

    ·     Bank transfer receipt dated 3 September 2016;

    ·     Two copies of COE (8653F755) for a Bachelor of Accounting, commencing 16 January 2017;

    ·     An offer and acceptance of enrolment letter dated 1 September 2016;

    ·     Course fee receipt dated 5 September 2016;

    ·     An email train dated 1 December 2017 concerning communication in August 2015 about the cancellation of the applicant’s enrolment by the course provider;

    ·     COE (6EE36A34) for a Certificate IV in Marketing, commencing 9 February 2015;

    ·     COE (6EE36C80) for a Diploma of Marketing, commencing 27 July 2015;

    ·     COE (6EE36D61) for a Bachelor of Business (Marketing), commencing 21 March 2016;

    ·     Death certificate dated 15 May 2015; and

    ·     Psychologist’s report dated 5 December 2017.

    HEARING EVIDENCE

28. The applicant provided oral evidence at both hearings and confirmed he arrived in Australia on 5 February in 2015 from Pakistan and is 26 years of age. He confirmed he is from Karachi and is a practicing Muslim. He has not returned to Pakistan since being in Australia. He has two brothers and a sister who reside in Pakistan. The applicant is the middle child. The applicant’s parents are alive and he stated that his father is a banker with HBL.

29. The applicant is the only person in his family to have travelled and studied overseas. He has never travelled anywhere else other than Australia. He confirmed he is single.

30. The applicant explained that he came to Australia for a quality education and a bright future. He had previously studied a Bachelor of Commerce at the University of Karachi and after he graduated, he worked six to eight months with an international company in Customer Service. The applicant then resigned to come to Australia.

31. The applicant was asked what his study objective was when deciding to come to Australia. He said he wanted to complete a bachelor degree. The applicant explained that he had an IELTS score of 5.5 which was not high enough to get direct access to a degree so his agent arranged for enrolment in an ELICOS course. However, he said the agent changed his recommendation and suggested the applicant commence with a Certificate 4 in Marketing followed by a Diploma and then a bachelor, instead of ELICOS. He said that these changes occurred prior to leaving Pakistan. He provided a copy of the confirmation of enrolment dated 2 February 2015 issued by DIBP Pakistan as evidence that he course was changed prior to coming to Australia. The Tribunal notes that the applicant arrived in Australia 5 February 2015. In discussion with the applicant, he was aware that he must study at a Bachelor level and believed that because he had enrolled in what in essence was a package course, this met the requirements.

32. He claims he arrived in Australia and commenced the Certificate 4 in Marketing; however things went bad almost immediately.

33. He confirmed that he attended the units associated with the Certificate 4 in Marketing at Cambridge International College; however he was unable to make satisfactory progress. He claims he was unable to concentrate as his grandfather died suddenly only a week after he arrived in Australia. The Tribunal asked if the death was unexpected and he said he died a natural death but it was unexpected. The applicant claimed he wanted to return but was unable to attend the funeral as he had just arrived. The dates of the death certificate support this claim.

34. The applicant claimed that he requested a deferment of his course so he could return home to Pakistan as he was depressed. He said he wanted to return and he continues to want to return in the future and live there. The Tribunal asked why he did not return to Pakistan and simply withdraw from the course and he said that he was not aware that he could withdraw, and he had asked for the deferment and he was waiting for this to happen and continuing to study. However, he simply was not able to concentrate, so he failed the Certificate 4 in Marketing. He said he was confused because he never received confirmation of the deferment. In spite of discovering later that it was granted. He had his subsequent enrolments cancelled and he had a gap where he did nothing because he was depressed and then he attempted to enrol in a Bachelor of Accounting.

35. The Tribunal asked the applicant why he did not return to Pakistan when he felt issues in Australia were becoming difficult. The applicant informed the Tribunal that he could not stop studying until he received the deferral. He explained that he had only arrived in Australia and after 5 days his grandfather died. He was not able to return home because he had just settled in and he did not have the financial means to leave again so soon after arriving. He persevered and remained at the College attending his units when he felt he could. Attendance records support this statement. The Tribunal asked how the applicant could continue attending his course if in fact he had deferred it. The applicant said he just continued to attend lectures but he struggled to concentrate. He explained that he was mourning his grandfather.

36. The applicant was asked if he sought any medical assistance. The applicant stated that he met a man called Randolph in the college, who was a psychologist. His evidence was detailed and supported by the deferment and the Tribunal accepts that he did see a counsellor.

37. The applicant was asked why he was unable to pay his fees. He explained that he did pay his fees. He said that he received payment notices for the amount of $280. He argued and provided evidence of his payment of $10,000 and argued that he would not logically hold back $280 and he paid his agent to pay this. he remains unsure of what it related to.

38. The applicant stated that he was issued with the notice of intention to cancel the visa. He emailed this to his agent. The applicant said he contacted his agent as soon as he received it. The applicant discussed the matter with his agent in Pakistan and was told him he had dealt with the school. He explained that the agent would take care of it. The applicant further elaborated that he had anticipated the deferral and he was confused by the events. 

39. The applicant informed the Tribunal that his intention after obtaining a deferment was to return in Pakistan and mourn his grandfather.  The Tribunal asked the applicant why, if he was depressed and upset and unable to concentrate, he did not withdraw from his course and return to Pakistan. The applicant stated that at the time of the request he was half way through the Certificate 4 semester and he was told that he would get the deferment after he finished it but he couldn’t concentrate. The applicant said he had contacted them by email to confirm progress on the deferral and had received no response.

40. The Tribunal asked the applicant, what he had intended to do given he failed the Certificate 4 and was therefore unable to commence the Diploma. The applicant said he decided not to study for the Diploma. He explained that he wanted to study, but not at that point as he was depressed. He said he felt mentally tortured.

41. The Tribunal asked the applicant about the claims pertaining to fraud. He said that he met an agent in September 2015 and he misled him and misused his documents, including his bills. He explained that the agent, whom he met at Cambridge International College through a friend and whose name is Punit Jinda, offered to set him up in a business and the applicant gave the agent approximately $4000 to $5000. The applicant said that he planned to study a Bachelor of Accounting and go into business. The applicant informed the Tribunal that he is not certain if the agent is a registered migration agent. The Tribunal asked the applicant if he reported the agent’s conduct however he said he did not know what to do. He said that he never received the money and he had lost his cash. He therefore was unable to enrol in a Bachelor of Accounting.

42. The applicant explained that he worried he could not return to Pakistan and he was depressed. He also stated that at that time he believed his family would not allow him to travel home.  The applicant advised that he went to a psychologist for help and also obtained a COE five days before his visa was cancelled. His visa was cancelled on 21 November 2016. He planned to study a bachelor degree and paid the associated fees, however his IELTS score of 5.5 was too low. He thought he was required to enrol in ELICOS, however a subsequent COE indicated that he did not have to study ELICOS. As a COE for ELICOS was not provided to him he never went. After this confusion he went to the course provider and they offered a new COE to commence ELICOS in January, but his visa was cancelled and he could not commence.

43. The applicant gave evidence that his intention is to study in Australia, however since arriving he has suffered depression and he has been misled. He wants to make his father and grandfather proud and he needs one chance to prove himself.

1. The applicant discussed the treatment that he had received for his mental health issues. He explained that he consulted Dr Eddy in the Docklands and he told Dr Eddy about everything. The applicant advised that he attended appointments with Dr Eddy on 4 December and during the week prior to the Tribunal hearing.

2. The applicant explained that he first sought help in March – April 2015 from Randolph who was the college counsellor. He met him a couple of times. Dr Syed was his local GP and he also attended his clinic. The applicant further advised the Tribunal that he was sent to a female doctor. He stated that he saw her, but he was very uncomfortable, and he left.

3. The Tribunal accepts that the applicant came to Australia with the intention to study a Certificate 4, Diploma and a Bachelor of Business (marketing). The Tribunal accepts based on the death certificate that the applicant’s grandfather died 5 days after he arrived in Australia and this affected his mental health and his ability to concentrate.

4. The Tribunal accepts the retrospective psychologist’s report which diagnosed the applicant with Persistent Depressive Disorder and anxiety. The Tribunal does not accept that the psychologist can “predict’ a negative prognosis if the outcome of the review is not positive. This is highly subjective, does not take into consideration whether the applicant undertakes the recommended treatment plan or any other ‘unpredictable factors’ which might present to the applicant. Notwithstanding this, the applicant did seek assistance from a counsellor at his course provider and was granted a deferment but was unaware it was given. He also sought further general medical advice and support. As the applicant then remained at the college and attending his course, waiting for the advice about his deferment, he unsurprisingly did not perform well. This then had a direct impact on the subsequent enrolments that were cancelled.

5. The Tribunal does not disagree that the applicant experienced mental health issues exacerbated by the death of the applicant’s grandfather and the experiences of being taken advantage of financially.  However the applicant was the holder of a student visa and his obligations included that he must study, maintain enrolment, attendance and course progress, in a registered course.

6. The purpose of the applicant's visa was to allow him to study. He arrived on 5 February 2015. He was granted a deferment from 25 May 2015 to 25 March 2016 and whilst he never received advice that this had been granted, he remained at the college until 15 July 2015. His courses were cancelled on 25 August 2015. He did not attempt to enrol in any studies until 4 October 2016 when he went to enrol with Group Colleges Australia for the Bachelor of Accounting which the Tribunal accepts was prior to the visa cancellation.

7. However, he was not enrolled in a registered full time course until his visa was cancelled. This is 7 months post the deferment date or 17 months after his course enrolments were cancelled.

8. The applicant stated at the hearing that he wants to study a Bachelor degree in Australia. He has demonstrated an aptitude to study at a tertiary level based on his previous studies in Pakistan and his demonstrated interest in commencing studies prior to the cancellation of his visa. Whilst he has been unable to provide evidence of the group assignment he submitted in the few weeks he attended classes, the Tribunal’s conversations with the course provider during the course of the second hearing confirm that applicant did attend college until the end of the unit because he believed a deferment had not been granted. The fact that the deferment had been granted and he remained studying indicates his commitment to remaining in Australia to complete his studies.

9. The applicant's demonstrated commitment to study as soon as he arrived in Australia and his attempts to re-enrol and engage in numerous discussions with the course provider on deferment and outstanding debts indicates the applicant’s commitment to undertaking studies in Australia.

   Does the ground for cancellation exist?

10. A visa may be cancelled under s.116(1)(fa)(i) if the Minister or the Tribunal is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

11. For matters where the notice of proposed cancellation under s.116 was sent on or after 27 March 2010, there are prescribed matters to which the Minister or Tribunal may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision.

    Findings and Reasons

12. The Tribunal acknowledges and accepts that the applicant came to Australia to study and that his grandfather died unexpectedly 5 days after his arrival in Australia and that he was unable to return to Pakistan. The Tribunal appreciates that this impacted on his ability to study and his mental health.

13. Given the evidence provided to the Tribunal it accepts that the applicant sought help through the course provider’s campus counsellor and he was granted a deferment due to compelling and compassionate circumstances. However when reviewing the documentation pertaining to the applicant’s studies it is clear to the Tribunal that the applicant became very confused and upset about the limited and inconsistent advice pertaining to his studies that he was receiving.

14. The Tribunal accepts that he never received confirmation of his deferment until after his enrolment was cancelled. This is accepted because there is evidence that the applicant was attending the college in the period of time he was meant to be deferred and it is illogical to think he would do this if he was not a committed student.

15. The Tribunal has considered the issue of non-payment of school fees and does not accept this was indicative of not being a genuine student or paying fees. The applicant provided evidence that the outstanding amount was $280 and he provided evidence of his $10000 he had previously paid. He provided evidence of emails to the college and his former agent regarding this. Any debt that may have owed was limited and not relevant to the applicant’s commitment to his studies.

16. The Tribunal accepts that the applicant’s grandfather died days after the applicant arrived in Australia and that this would have contributed to poor judgement and mental health issues.

17. The applicant demonstrated a commitment to seeking medical help albeit inconsistent and sporadic during his time in Australia which adds to his claim that he was unwell and could not study.

18. The applicant has provided a range of evidence to support that he did not randomly change courses from Accounting to Marketing. He did acknowledge that his education agent in Pakistan suggested the change and that his preference was to undertake Accounting subjects but his English was the issue. The change in COE was done prior to the applicant arriving in Australia and should not reflect negatively on the applicant. Furthermore, the Tribunal accepts that the Certificate 4, Diploma and Bachelor courses were a package course and consequently at a higher level as it incorporated a Bachelor degree.   

19. The applicant’s representative made verbal submissions on behalf of the applicant at the end of the hearing, referring the Tribunal to issues raised about enrolment dates in the NOICC dated 3 November 2016. He stated that his client had contacted Group Colleges Australia in October to obtain a copy of the original COE issued but they cannot locate it. He stated that the applicant’s genuineness in regards to wanting to study should be considered but he faced the issue of not understanding or being told he needed an IELTS score of 6 to commence his Bachelor of Accounting in October 2016. He asked for the Tribunal to give weight to this as it precedes the NOICC.  

20. The Tribunal acknowledges his attempt to re-enrol in a course prior to the NOICC.

21. The agent further submitted that the applicant is gullible, naïve, an easy target and he was taken advantage of. It was an agent that led the applicant to GCA. The applicant has been frustrated by his own experiences. The Tribunal places limited weight on this. The applicant has previously undertaken a bachelor degree and has worked in Pakistan before coming to Australia. Whilst his experience has not been pleasant, they do not provide sufficient reason to disregard the fundamental requirements of a student visa, namely enrolment.

22. The applicant's visa was cancelled because he is not or is not likely to be a genuine student. This was based on his failure to obtain an academic qualification since the grant of the Subclass 573 visa, his lack of academic progress, his poor attendance record, failure to pay fees and his extensive gap in study. The Tribunal is mindful that he faced some extraordinary circumstances which occurred one after the other and commencing with his grandfather’s death only 5 days after arriving in Australia. The applicant sought to defer his studies and this was granted but he was never told. His COE was cancelled and this left him further perplexed whilst suffering mental health issues. His course provider’s documentation was poor and unclear pertaining to outstanding fees, clarification of when his deferment actually commenced and their inability to inform teaching staff who continued to mark the applicant absent contributing to his COE cancellation.

23. The Tribunal has carefully considered the applicant's circumstances independently and cumulatively. The Tribunal recognizes that the cancellation of the visa is a significant matter and can have ongoing migration related issues for the applicant. There were many issues the delegate relied upon to find that the applicant was not a genuine student. Given the two hearings and the significant period of time reviewing the paper work, the Tribunal does not accept the majority of the conclusions which the delegate came to with the benefit of speaking to the applicant. Notwithstanding this, the Tribunal is cognisant of the period of time the applicant was not enrolled in a registered course of study which is a serious breach of condition 8202. This appears to be the key issue pertaining to this case and as such a cancellation could have been considered under s.116(b).

24. Given the applicant’s mental health issues, the death of his grandfather, the fact that he was new to a country and the confusion around his deferment and outstanding fees, it is not unreasonable that he struggled with making rational decisions. It remains a concern that it took him a significant period in which to address his enrolment. The Tribunal sees this as an isolated issue. The applicant has in other ways demonstrated that he is likely to be a genuine student by his attendance at college right on the cusp of his Grandfather passing, his commitment to attend college up until his deferment was granted and his ability to explain the changes in courses and the outstanding $280 which the Tribunal accepts as truthful.

25. On balance and considering the circumstances as a whole, the Tribunal concludes that the applicant is a genuine student. The Tribunal does not accept that the multiple circumstances identified by the delegate to establish that the applicant was not a genuine student existed. The Tribunal finds that the applicant, through his behaviour, has demonstrated he is likely to be a genuine student, notwithstanding the non-enrolment period.

26. For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(fa)(i) does not exist.

    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.

    Rachel Westaway
    Senior Member

    
    

    ATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.