Ikufu (Migration)

[2022] AATA 2800

Ikufu (Migration) [2022] AATA 2800 (6 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Joseph Ikufu

CASE NUMBER:  2201459

HOME AFFAIRS REFERENCE(S):          BCC2020459473

MEMBER:Frank Russo

DATE:6 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 6 July 2022 at 5:46pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant didn’t maintain enrolment in a registered course of study – applicant did not comply with condition 8202 – satisfied that the applicant’s purpose for remaining in Australia remains to study – multiple attempts to rectify his enrolment status and comply with the conditions of his visa – decision under review set aside

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 27 January 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 was not enrolled in a registered course of study since 10 July 2019 until the date of the delegate’s decision, on 27 January 2022. 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 is a 26-year-old national of Papua New Guinea. He was granted the Student visa on 8 February 2018 for the purpose of completing a Bachelor of Education (Early Childhood and Primary) at Australian Catholic University (ACU). According to the delegate’s decision, his enrolment in the Bachelor of Education was cancelled by ACU on 10 July 2019 for non-payment of fees.

4. The applicant appeared before the Tribunal by video conference on 19 May 2022 to give evidence and present arguments. The hearing was also attended by the applicant’s pastor, Mr Vosa, whom the applicant requested act as his representative for the purpose of the hearing. The Tribunal noted that the applicant had not formally written to the Tribunal using the prescribed form to appoint Mr Vosa as his representative, however the Tribunal allowed Mr Vosa to attend the hearing and to make oral submissions on behalf of the applicant.

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. 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.

7. In addition to his application form for review and the reasons for decision of the delegate and a copy of the notice of decision sent by the Department, the applicant provided the Tribunal with a response to the hearing invitation as well as submissions provided on 4 May 2022 and following the hearing, on 1 June 2022, each of which contained multiple attachments, the details of which are set out in the reasons below, where relevant.

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

10. The applicant gave evidence at the hearing that he first arrived in Australia around January 2013. His mother had finished a work posting in Malaysia and he lived with his brother while he completed years 11 and 12 of high school. He then enrolled at Canberra Institute of Technology (CIT), where he completed a Certificate IV in Sports Management and a Diploma of Sports Management. He then commenced the Bachelor of Education at ACU.

11. The applicant agreed that he was not enrolled in a course of study from 10 July 2019, when his enrolment in the Bachelor of Education was cancelled for non-payment of fees.

12. Although the applicant’s evidence regarding his enrolment was overall consistent with the information contained in an extract of his enrolment record from the Provider Registration International Student Management System (PRISMS), the Tribunal noted that his PRISMS record contained further details, and therefore put the particulars of the information from this record to him using the procedure contained in s.359AA of the Act.

13. 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 explained that according to his PRISMS record he was enrolled in secondary school from October 2013 to December 2016, which he completed. He was then enrolled in a Certificate IV in Sport Development and a Diploma of Sport Development, the latter of which he completed in December 2016. He was then enrolled in the Bachelor of Education from 12 February 2018 to 31 December 2021, however this enrolment was cancelled on 10 July 2019 for non-payment of fees. The PRISMS record indicates that the applicant has not been enrolled in a registered course of study since 10 July 2019.

14. The Tribunal explained to the applicant the consequences of relying upon the information. The applicant confirmed he understood the relevance of the information. The applicant indicated that he wished to respond to the information at the hearing. The applicant indicated that the information contained in his PRISMS record is correct, although he indicated that he attempted to obtain another enrolment, but could not do so because enrolment providers were making unfavourable presumptions. The applicant gave further evidence regarding the circumstances which resulted in the breach, which the Tribunal indicated it would consider in relation to the discretion whether to cancel the visa.

15. From his evidence, the applicant concedes that he was not enrolled in a registered course of study from 10 July 2019 to 27 January 2022, the date of the delegate’s decision, and had failed to maintain his enrolment in accordance with condition 8202. This is also confirmed by the evidence from his PRISMS enrolment record. The applicant confirmed that he therefore accepts that there are grounds for cancellation of the visa.

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

    Consideration of the discretion to cancel the visa

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

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

18. The applicant gave evidence that his purpose for remaining in Australia remains to obtain qualifications from Australia which will be recognised internationally. He stated that while he was studying Sports Management he was attending schools as part of his coursework, and was advised by teachers that he had talent in talking to and engaging with students. This compelled him to commence the Bachelor of Education.

19. The applicant also gave evidence that at the time his enrolment in the Bachelor of Education cancelled, he was working as a restaurant manager, and had been working in such a capacity for four years. He stated that his boss suggested to him that if he was willing to take up studies in Hospitality Management, she would sponsor him with his studies, after which he could return to Papua New Guinea to start his own business in hospitality. The applicant explained that this was the reason why he decided to change his study pathway to the Diploma of Hospitality Management after he could not obtain a further enrolment in the Bachelor of Education. He told the Tribunal that if the visa were not cancelled, he would return to studying the Bachelor of Education or consider Hospitality Management. Later in the hearing he confirmed that he now has sufficient funds for the Bachelor of Education and wishes to re-enrol in this course.

20. The Tribunal questioned the applicant as to whether he has sufficient funds to continue with his studies, in light of the cancellation of his enrolment for non-payment of fees. The applicant indicated that at the time his enrolment was cancelled, his mother had been unlawfully terminated from her employment, which resulted in her taking legal action in two cases, one of which has resulted in some funding becoming available. The applicant indicated that he would provide the Tribunal with further evidence of his access to sufficient funds.

21. The Tribunal raised various potential concerns with the applicant and gave him an opportunity to comment or respond as a matter of procedural fairness. The Tribunal put to the applicant that the information he had provided to the Department indicates that his application for enrolment to CIT was rejected by CIT multiple times on the basis that CIT considered he did not meet the genuine temporary entrant requirements. The Tribunal put to the applicant that he claims he has contacted the International Student Ombudsman’s Office about CIT’s decision, however over 2 years and 6 months have passed, and the Tribunal may consider that he has had sufficient time to obtain a further enrolment if this was his purpose for remaining in Australia. The applicant responded that he does not have other reasons for wishing to remain in Australia. He stated that he attempted to enrol with CIT because he had previously studied there, and the provider was familiar to him. He stated that he looked at applying other places but found that some would not allow international students.

22. The Tribunal put to the applicant concern that the evidence he had given of his employer’s willingness to sponsor him may indicate that he has other reasons for wishing to remain in Australia. The applicant responded that in Papua New Guinea the quality of teaching in both Education and Hospitality are low, with a culture which includes frequent striking. He stated that he knows his way around the hospitality industry, including how to talk to people and how to cook, however his plan is to return to Papua New Guinea to open his own training facilities.

23. Having considered the applicant’s evidence as a whole, as well as the evidence he has provided of his attempts to first obtain a new enrolment in the Bachelor of Education, and then to obtain enrolments in the Diploma of Hospitality Management, I am satisfied that the applicant’s purpose for remaining in Australia remains to study. The applicant provided convincing reasons for his enrolment in the Bachelor of Education and its relevance to his future plans. He also provided a convincing explanation for why he attempted to enrol in the Diploma of Hospitality Management at CIT, following attempts to re-enrol in the Bachelor of Education. I have also considered the documents which the applicant has provided with respect to his access to funds, including multiple documents provided by the applicant after the hearing, and am satisfied the applicant now has sufficient access to funds required to support his studies. I have also considered the applicant’s education history as a whole, including his successful completion of years 11 and 12 and the Certificate IV and Diploma of Sport Development, and am satisfied that the applicant’s primary purpose for remaining in Australia is to complete his studies. He has provided compelling reasons why he wishes to complete his studies in Australia, rather than in Papua New Guinea. The Tribunal gives this consideration weight against cancelling the visa.

    The extent of compliance with visa conditions

24. The applicant conceded at the hearing that he did not comply with condition 8202 of his Student visa by not maintaining enrolment in a registered course of study from 10 July 2019 to 27 January 2022, the date of the delegate’s decision. The Tribunal put to the applicant that this is a period of over 30 months, which is a significant length of time and a significant breach. The applicant responded by detailing the attempts he made to comply with the enrolment condition, which included contacting the Department with respect to his visa situation, and attempting to re-enrol in the Bachelor of Education and attempting to enrol in the Diploma of Hospitality Management at CIT. He stated that he was in constant communication with the Department, rather than it being a situation where the Department was chasing him up. He stated that eventually communication from the Department ceased. He stated that he attempted on multiple occasions to obtain enrolments with ACU and then with CIT, including taking action with the International Student Ombudsman’s Office regarding CIT’s decision not to enrol him.

25. The applicant gave evidence that he has complied with the other conditions of his visa. He stated that he currently has access to sufficient funds and has sufficient insurance. There is no evidence of the applicant breaching other conditions of his visa.

26. I consider the length of the breach to be very significant, and one which would in other circumstances attract weight in favour of the cancellation of the visa. However, in the current circumstances the applicant has provided documentary evidence of his open communications with the Department and of multiple attempts to rectify his enrolment status and comply with the conditions of his visa. I therefore give this consideration only little weight in favour of cancelling the visa.

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

27. The applicant became somewhat emotional as he gave evidence of the hardship which would be caused by the visa cancellation. He indicated that it would break his heart and would mean that he would need to return to his home country without obtaining Australian qualifications. He stated that this would create uncertainty for his future and he is not sure what he would be able to do without qualifications. He stated he would need to re-evaluate his career choices. The cancellation would also create difficulty for his parents.

28. I accept that the cancellation would create hardship for the applicant, in particular create hardship in terms of his future career options. The cancellation would mean the applicant would be unable to complete qualifications in Australia and may therefore not be able to obtain qualifications which are recognised internationally. I accept that the applicant may be faced with limited career options upon return to Papua New Guinea and may require some time to re-evaluate his career options. I also accept that the cancellation may create hardship for the applicant’s family, who have supported him with his studies to date. I give this consideration some weight against cancelling the visa.

    The circumstances in which the ground of cancellation arose

29. The applicant gave evidence that approximately 18 months into his studies towards the Bachelor of Education, his mother was unlawfully terminated from her employment. In early 2020 the COVID-19 pandemic commenced, which affected his father’s business which involves the exportation of rubber from Malaysia. He gave evidence that his family fell on difficult financial circumstances at the time, and that his enrolment in the Bachelor of Education was cancelled because of non-payment of course fees. The applicant stated that following this cancellation, he contacted ACU a number of times in an attempt to re-enrol in the Bachelor of Education. He contacted the Department to advise of the situation and to seek advice as to how he could best comply with visa requirements. Following his unsuccessful attempts to re-enrol in the Bachelor of Education, he sought to obtain enrolment in the Diploma of Hospitality Management at CIT in order to comply with the enrolment requirement, however CIT refused to issue him with a CoE on the basis that they considered the Department would not issue him with a Student visa on the basis that he may not be a genuine temporary entrant. He gave evidence that he attempted to enrol in the Diploma of Hospitality Management because hospitality is an area of interest to him, and because his family could at that time afford the fees for this course. He sought to challenge CIT’s decision with the International Student Ombudsman’s Office. He claimed that he was caught in a catch-22 situation as he was unable to obtain a CoE from CIT because CIT considered the Department would not grant him a visa, and he could not apply for another Student visa because he was unable to obtain a new CoE.

30. The applicant gave evidence that the court cases in which his mother was involved were prolonged in length, which meant his family found it difficult to resolve the circumstances, however at the time of the hearing there were indications that both cases would be resolved favourably.

31. The applicant has provided a number of documents which set out his attempts to obtain a CoE from ACU and then from CIT. These include the following emails with ACU:

    a.Email from ACU to the applicant, dated 10 July 2019, advising that the applicant had not appealed ACU’s decision to cancel his enrolment due to non-payment of fees. The email also advised that the applicant could write a formal letter requested reinstatement in his course, which would require the payment of outstanding fees as well as a late fee and reinstatement fee;

    b.Email from the applicant to ACU, dated 29 July 2019, seeking reinstatements of his enrolment. The applicant indicates that funds from overseas had not been processed within time and that he had contacted the Department to advise of the situation;

    c.Email from ACU to the applicant, dated 29 August 2019, providing the applicant with a provisional offer and requiring that certain information be provided, including information addressing the genuine temporary entrant criterion and evidence of sufficient funds;

    d.Email from the applicant to ACU, dated 29 October 2019, in which he sought to provide documents in satisfaction of the information requested by ACU;

    e.Email from ACU to the applicant, dated 7 November 2019, requesting further evidence regarding the applicant’s employment and immigration histories and further evidence of family relationships and access to funds;

    f.Email from the applicant to ACU, dated 28 November 2019, attaching information which he believed was in satisfaction of the information requested by ACU;

    g.Further email from ACU to the applicant, dated 6 December 2019, requesting information from the applicant regarding his access to sufficient funds, including funds of AUD $46,496;

    h.Response from the applicant to ACU, dated 14 January 2020, in which the applicant questions why he needs to provide evidence of access to $46,496, and in which the applicant also indicates he is able to pay a semester’s fees;

    i.Email from ACU to the applicant, dated 16 January 2020, in which ACU explains the requirement of access to sufficient funds; and

    j.Email from ACU to the applicant, dated 4 February 2020, in which the applicant is advised of the outcome of his enrolment application.

1. The applicant also provided copies of emails between himself and CIT from February and March 2020, in which CIT advises that he has applied for vocational courses, including an Advanced Diploma of Business, however CIT considered the Department would not view such enrolments favourably, and therefore the applicant did not meet CIT’s genuine temporary entrant requirements. The correspondence recommends that the applicant continue with higher education studies. On 12 March 2020 the applicant responded to CIT to request reasons and information about the appeal mechanisms, however no further correspondence from CIT has been provided.

2. The applicant has also provided a response he provided to the Department in April 2020, in response to notice of intention to consider cancellation of the visa (NOICC). The information contained in this response is largely consistent with that given in the applicant’s oral evidence and does not need to be repeated. He states however that his decision to apply for the Advanced Diploma of Hospitality Management was made after discussing the option with his parents and after considering this was the most viable option for him at the time, because he would be able to provide evidence he could pay the first year’s tuition fees. He also states his intention to contest the decision of CIT on the basis that CIT were pre-empting a decision of the Department. He believes that CIT did not provide valid reasons and their attempt to pre-empt a decision by the Department is wrong. He states that he is aware of the requirement to inform the Department if his situation changes, including if he changes courses. He notes that he understands that a change in study to a lower AQF level would require him to re-apply for the Student visa, to ensure his visa covers the proposed study. He states that he has been diligent in attempting to follow these requirements, but has run into the difficulty of obtaining a current CoE.

3. Having considered all of the evidence before the Tribunal, I find that the applicant’s enrolment in the Bachelor of Education was cancelled due to the non-payment of fees in July 2019. I accept the applicant’s evidence that this was the result of his mother’s involvement in an unfair dismissal case. Following the hearing, the applicant provided the Tribunal with supporting evidence, including his mother’s contract of employments and documents relating to the legal action. While I accept that the financial difficulties which the applicant’s family faced from approximately mid-2019 were the result of events which were beyond the applicant’s control, it is a requirement for the Student visa that a student maintain access to sufficient funds for their studies. I accept that following the cancellation of his enrolment in July 2019, the applicant took steps to re-enrol in the same course, but did not satisfy ACU that he had access to the funds required to fund his studies for a year. Rather than attempting to provide evidence of access to $46,496, the applicant sought to argue with his education provider that there is no visa requirement that he show access to such funds.

4. From February to March 2020 the applicant shifted his focus to attempting to enrol in courses leading to the Advanced Diploma of Hospitality Management at CIT in order to meet the enrolment requirement. While he recognised that this would entail dropping Australian Qualifications Framework (AQF) levels, he contacted the Department and acknowledged that he would need to reapply for the Student visa in light of his change in circumstances.

5. I am therefore satisfied that the applicant took a number of steps from July 2019 to March 2020 in an attempt to rectify the situation and to ensure that he met the enrolment requirement. I am also satisfied that he contacted the Department to inform the Department about the situation and to seek assistance and information about his obligations, and I take these positive steps into account in considering this factor as a whole. I note however that there is no evidence of the applicant having taken any further steps to obtain enrolment from April 2020 onwards, including a period of approximately 20 months until the cancellation of his visa in January 2022. The Tribunal put this concern to the applicant, who indicated that he was waiting on the outcome of court cases in which his parents were involved, as well as waiting on a CoE so his boss could pay for his studies. The applicant provided insufficient responses to questions about why he did not seek to enrol at another college if CIT was unwilling to provide him with a CoE. The applicant responded variously that he was familiar with CIT and that he was concerned that looking to enrol at other colleges might be a waste of time. I have considered the applicant’s evidence that he sought to challenge CIT’s decision before the International Student Ombudsman’s Office, however he has not provided supporting information of such action, nor of any ongoing processes. While I note that the applicant has made submissions about the legitimacy of CIT’s decision to refuse to grant him a CoE, such a decision is not reviewable by this Tribunal.

6. I have also taken into account the effects of the COVID-19 pandemic on the applicant, including the ongoing effect on the financial affairs of his family. The applicant indicated that had it not been for the COVID-19 pandemic and the closure of international borders, he would have arranged his affairs and left Australia as he did not have the financial capacity to continue with the Bachelor of Education in 2020. He stated that he made the Department aware of his intention to leave Australia, but could not do so due to the closure of borders. Overall I consider that the applicant took a number of steps to rectify his non-enrolment situation from July 2019 to March 2020, although there is little evidence of any steps which the applicant has taken since then. However, in light of the evidence which the applicant has provided of his attempts to re-enrol and to seek advice from the Department, I give this consideration only a little weight in favour of cancelling the visa.

   Past and present behaviour of the visa holder towards the department

7. The applicant gave evidence that he informed the Department of the cancellation of his enrolment in July 2019. He told the Tribunal that he wanted to keep a good relationship with the Department. He stated that he did his best to provide the Department with the information which they sought, including clearly stating the facts, not hiding anything from the Department and continuing to keep the Department informed. I am satisfied that the applicant behaved in a positive and constructive manner with the Department. He provided a response to the NOICC. I give this consideration some weight against cancelling the visa.

   Whether there would be consequential cancellations under s.140

8. The applicant confirmed at the hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

   Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

9. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 of the Act, however it notes that he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean the applicant might face difficulties in being granted further visas in Australia, and that he could also be subject to a three-year exclusion period unless he meets relevant Public Interest Criterion.

10. When asked about this consideration, the applicant indicated that he understood and that he had communicated to the Department an intention to depart from Australia in 2020 as he could not afford to study at that time, but he was unable to leave due to the closure of international borders as a result of the COVID-19 pandemic. The Tribunal also notes and accepts that if the visa were cancelled, the applicant is likely to be subjected to a three-year exclusion period from applying for another Student visa. The applicant is currently aged 26 and has already experienced a delay of approximately 30 months in completing his proposed education. Given the attempts which the applicant has made to re-enrol in a course of study and the difficulties he may face in completing his education in his home country, I give this consideration a little weight against cancelling the visa.

    Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

11. There is no evidence that the applicant has any children. The Tribunal weighs this factor neither in favour nor against cancelling the visa.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

12. The Student visa is a temporary visa and this consideration is not applicable.

    Any other relevant matters

13. The applicant stated that there were no other relevant matters for the Tribunal to consider. He confirmed that he had no other comments about the delegate’s decision. The Tribunal weighs this neither in favour nor against cancelling the visa.

    Weighing the considerations as a whole

14. The Tribunal considers this case to be an unusual one. Although the reason for the cancellation of the applicant’s enrolment is a simple and common one, namely the non-payment of fees, the applicant has given copious amounts of documentary evidence which indicates that he took steps to remedy this situation by first re-enrolling in the same course he had been enrolled in, and when this did not work because of his ongoing financial situation, enrolling in a lower-level course which he was nonetheless passionate about completing. The applicant also contacted the Department to inform them of his change in circumstances. Although I have concerns about the level of action taken by the applicant from April 2020 onwards, I have accepted that he did attempt to remedy the circumstances which resulted in the breach, despite his actions being unsuccessful, and that his ongoing attempts were hampered by factors such as the COVID-19 pandemic and uncertainty regarding what future steps to take. I have therefore given the circumstances of the breach only a little weight in favour of cancelling the visa. While the length of the breach is significant, I have only given this consideration a little weight in favour of cancelling the visa, again in light of the attempts the applicant made to meet the visa conditions, which he was unable to satisfy in 2020 due to his temporary financial situation. Overall, the Tribunal found the applicant to be a witness of truth. He gave his evidence openly and in a matter-of-fact manner, including in situations when this may not have been in his favour. He struck the Tribunal as a clear communicator, motivated and conscientious. The applicant has provided evidence that he is currently able to meet the financial requirements for the Student visa and he intends to re-enrol in the Bachelor of Education. I have given weight to the applicant’s continued compelling purpose for remaining in Australia. I have also given some weight to the hardship he would experience if the visa is cancelled, as well as for his behaviour towards the Department.

15. Under the circumstances I consider that the applicant should be given one further opportunity to re-enrol in the Bachelor of Education and to complete his education in Australia. I note in passing that should the applicant fail to re-enrol in this course or an equivalent-level course, and continue to live and work in Australia without maintaining the enrolment requirement, this is likely to once again enliven the Minister’s powers to cancel the applicant’s visa.

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

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

    Frank Russo
    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.