Javed (Migration)

Javed (Migration) [2024] AATA 2194 (14 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Husnain Javed
REPRESENTATIVE:  Mr Imran Ali (MARN: 0959879)
CASE NUMBER:  2214412
HOME AFFAIRS REFERENCE(S):          BCC2022/73157
MEMBER:Michael Bradford
DATE:14 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 14 March 2024 at 9:29am

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa –– applicant had not been enrolled in a registered course of study– breached condition 8202 – failure to enrol in another course or courses – loss of his grandfather and aunt had caused significant hardships – the breach did not occur in circumstances beyond the applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
Introduction

This is an application to review a decision of a delegate to cancel the applicant’s Subclass 500 (Student) visa under Sec 116(1)(b) of the Migration Act 1958.
The delegate cancelled the visa on the basis that the applicant had not been enrolled in an acceptable course of study since 19 August 2019, was thus in breach of condition 8202 and had been for a period of more than 3 years. There was no issue before the delegate that the applicant was in fact in breach of that condition and that such breach afforded a ground on which to cancel his visa under Sec 116. The only issue before the delegate was whether the visa should be cancelled.
The applicant maintains that position in the review. He accepts that he was in breach of the relevant condition for a period of more than 3 years but says that his visa should not be cancelled because the breach was unintentional and arose in compassionate and compelling circumstances beyond his control.
The decision was made on 26 September 2022. The Review Application was filed on 28 September 2022 and is within time but, for the following reasons, I have concluded that the decision should be affirmed.
Procedure, documentary aspects and the hearing
The applicant has engaged with the review process by providing a documentary case, albeit very late and not in accordance with the required time frames, and by giving oral evidence at the video hearing held on 25 October 2023.
On 23 October 2023 the applicant’s Registered Migration Agent, Mr Imran Ali, filed numerous documents in the Tribunal which included a statement from the applicant dated 20 October 2023 (the GTE statement), an Academic Transcript from La Trobe College Australia (LTCA) relating to his studies in a foundation course during Term 1 2019, later correspondence with that provider relating to his request for a release from his enrolments in that course and a Bachelor of Cybersecurity (BC), various offers from other providers for enrolment in other courses which he procured at about that time to support his proposed release, a sponsorship affidavit of 19 October 2023 from his parents, a Job Letter dated 18 May 2023 from a restaurant in Saudi Arabia confirming the employment of his father as an Operating Manager since March 2019, and records from the Allied Bank in Pakistan relating to an account operated by his parents during the period from April to October 2023.
On 24 October 2023 at about 6.06 pm additional documents were filed under cover of an email including medical reports from the applicant’s Consultant Psychiatrist in Pakistan, Dr Junaid Rasool, dated 25 July 2019 and 20 October 2023. Although the 2019 report sent under cover of this email appears to be a signed draft the settled version of this report can be found in the Department’s file.
Apart from that file I have also had access to a PRISMS record, and a Movements Details record for the applicant, the information in which is uncontroversial.
The applicant gave his oral evidence in English without apparent difficulty over a period of about 90 minutes. He was assisted by Mr Ali.
Among other things, the applicant told me that he ceased studies in the foundation course at the end of Term 1 2019 because he felt it was not worth doing, that it was in effect a waste of his time and money, he became aware that other providers were offering higher level courses without the need to undertake foundation studies so he sought direct entry into the BC or a release from LTCA to transfer to a Bachelor of Information Technology (BIT) at the Southern Cross University (SCU) which LTCA refused, and that this refusal had prevented him from enrolling in that and other registered courses at other providers.
Mr Ali confirmed during my exchanges with him that the applicant’s explanation for the cancellation of his enrolments at LTCA was indeed based on his refusal to complete the foundation course and that his failure to enrol in another course or courses was due to the asserted effects of the LTCA’s refusal to release him from the principal course in which he was enrolled, namely the BC.
Although the applicant had provided shortly prior to the hearing some of his correspondence with LTCA it became apparent that there were other documents, including the LTCA application form about which the applicant had given evidence, and those which related to an internal appeal from the refusal.
Mr Ali confirmed that he would provide those and other documents if given the opportunity, so I acceded to his request and, after about 1 hour and 50 minutes of hearing time, reserved my decision on terms which gave the applicant leave to provide additional material within 7 days, including any further written submission.
On 1 November 2023 Mr Ali provided a further statement from the applicant, additional documents relating to LTCA’s refusal and a submission which, among other things, refers to Standard 7.1 in the National Code 2018, a provision which is said to have prevented the applicant from enrolling in any other course once LTCA had refused to release him.
The evidence before the delegate and his decision
In his response to the NOICC of 7 May 2022 the applicant acknowledged that he had been in breach of the enrolment condition since 19 August 2019 but, among other things, said he was severely depressed in Pakistan before he came out here and had received in that country continuous medical treatment for this condition, presumably from Dr Rasool. He said that the death of his grandfather in late February 2020 had resulted in significant additional distress, that he struggled with it, had difficulty functioning and neglected his own health and well-being, had no friends or other support here, could not gain insight into his situation and his depression got worse. When the pandemic impacted Australia in March 2020, he resumed contact with his doctor in Pakistan, apparently Dr Rasool, and had received further support from him. According to the applicant his doctor was the only person he could trust and turn to for advice about his hardships and struggles. In addition, the applicant informed the delegate that his aunt’s death on 28 June 2021 had caused him to spiral further into depression.
He goes on to say in his response that, when LTCA cancelled his enrolments in August 2019, he was not able to understand or seek help so as to gain an awareness that he had to apply for another enrolment and that, because of his mental state, he was incapable of making reasonable decisions, that his failure to re-enrol and continue with his studies was unintentional.
To support those contentions, he provided to the delegate two reports from Dr Rasool dated 25 July 2019 and 8 May 2022. In the 2019 report the author confirms that the applicant had been his patient before he came out here, that his condition had deteriorated after he arrived, and that he had a major depressive disorder. In the 2022 report it is said that the applicant had been depressed for almost 4 years, that it got worse after he arrived here, that he had severe depression and was unable to concentrate on his studies.
After referring to his earlier immigration history, the applicant also claims in his response that his mental health had significantly improved over the last few years due to meditation and other methods of self-reflection.
He concludes his response by reiterating that the loss of his grandfather and aunt had caused significant hardships and that the cancellation of his visa will eliminate any chance of his mental condition improving.
It is notable that his response letter does not contain any assertion to the effect that he had been prevented from re-enrolling in any other course because of LTCA’s refusal to release him but he does rely on this in the review and he has led a good deal of documentary evidence in the form of offers from other providers to enrol him in other courses which were made subject to a release being provided and other academic requirements being met.
In his decision, after finding that the applicant had not complied with the enrolment condition since 19 August 2019 and that this breach afforded a ground on which to cancel the visa, the delegate recites the reasons which the applicant gave in his response for not cancelling his visa. He noted that the applicant’s non-enrolment had commenced prior to the death of his grandfather and that he remained unenrolled for a significant period after the death of his aunt. He also noted that the applicant had provided no evidence to substantiate his contention that his mental condition had improved sufficiently to enable him to resume his studies and was not satisfied that he could or would study in the future.
Having considered each of the relevant factors and having attributed to them what he regarded to be appropriate weight the delegate concluded that the grounds for cancelling the visa outweighed the reasons not to cancel it.
Accordingly, the applicant’s visa was cancelled for breach of the enrolment condition.
Credibility aspects, an overview of the review case and findings on his main claims
As his oral evidence unfolded it became clear to me that the applicant was obviously anxious about his immigration predicament and wanted to put his best case forward irrespective of whether his contentions had any real basis in fact, or whether they were consistent with the broader objective features of his case. Indeed, some of his oral evidence on important aspects is impossible to reconcile with his own documentary case, while other aspects of his case are difficult if not impossible to reconcile with the case which he put to the delegate in response to the NOICC.
His response to the NOICC, and more particularly the assertion that in August 2019 he was unaware that he had to seek enrolment in another course was, at best, a distortion of the truth given the nature and scope of his documentary case in the review. To convince the delegate that he was unaware of this requirement, the applicant said that because of his depression he was incapable of making rational decisions, and he provided medical evidence which (he said) proved that he was, while at the same time withholding from the delegate a good deal of other documentary evidence in the form of his correspondence with LTCA, and the offers of enrolment from these other providers, which points inexorably in the other direction.
For the applicant to deceive the delegate in these ways profoundly affects his general credit and goes a long way towards undermining the merits of his review case.
For those and other reasons I am not prepared to accept his oral evidence and written statements unless it is consistent with the objective features, is otherwise plausible, is corroborated by other more reliable sources, or amounts to an admission against his interest.
I did not get the impression during his oral evidence that the applicant was emerging from the effects of a major depressive disorder, or anything like it, if indeed he at any stage has suffered from such a condition. Certainly, for reasons I will develop later, the medical evidence does not satisfy me that he was suffering from a severe depressive illness in or about August 2019, or at any later stage. I do not accept his claim that he was incapable of making rational decisions in August 2019, or at any later time, mainly because it is entirely inconsistent with the objective features, more particularly with his own conduct in seeking a release from LTCA for the reasons he gave at the time and in procuring offers of enrolment in other courses at different providers.
His correspondence with LTCA during the period from 23 July 2019 to 3 September 2019, when viewed in conjunction with other aspects of his conduct during that period, satisfies me that he was in fact capable of making rational decisions, and did so however unwise and misguided they may have been.
Among the documents provided to the Tribunal shortly before the hearing is the Offer dated 10 July 2019 from SCU for enrolment in the BIT the terms of which included a provision to the effect that the offer was subject to a release from LTCA.
Among the documents provided after the hearing is his completed LTCA application form for the release dated 19 July 2019, a form which identifies his proposed new provider as SCU and his new course as the BIT.
Given that and other evidence there was nothing irrational about the applicant seeking a release from LTCA in these circumstances. This was a perfectly logical and necessary step for him to take given his refusal to proceed with his studies at LTCA, his intention to transfer to SCU, and the terms on which that provider had offered him a place in the BIT. Moreover, the reason he gave in the LTCA form for wanting a release, namely that he could go directly into the BIT without first having to undertake foundation studies, cannot be described as irrational.
Nor can the reasons he gave, in his internal appeal to LTCA, for wanting to study the BIT, or broadly equivalent courses on offer from Melbourne Polytechnic, which he said were cheaper and better options for him because he was interested in IT.
The applicant’s 20 October 2023 statement goes into some detail regarding what took place in or about August 2019 and, at the hearing, he gave oral evidence to the effect that he believed LTCA’s refusal to release him had the effect of precluding him from enrolling elsewhere.
But even if I were to accept his claim that LTCA’s refusal to release him from the BC had that effect, or he believed on reasonable grounds that it did, it could make no difference to the outcome of this case.
Faced with the refusal, he had the option of completing the foundation course and continuing with his studies at LTCA for as long as was necessary to meet the conditions on which LTCA would grant a release, or to otherwise meet the enrolment requirements of his alternative providers.
I do not read his correspondence with LTCA as supporting his asserted belief that the refusal prevented him from enrolling in any other registered course, but I do accept that he believed, on reasonable grounds, that a release from LTCA would enable him to enrol in certain other courses more to his liking, and thus avoid the need for him to complete his foundation studies.
His review case regarding the broader asserted effects of the LTCA refusal to release him appears to me to be opportunistic and, for reasons I will develop later, counter intuitive.
His claim that he was not capable of productive study as from in or about August 2019 because of a severe depression disorder is impossible to reconcile with the objective features of what he did and with his motives for doing it.
The applicant has also suggested that COVID, and the loss of his relatives, impacted him in ways which prevented him from studying at later points in time but, absent credible medical evidence to sustain these claims, I do not accept his self-serving assertions to the effect that these events compromised his ability to engage in productive study as from August 2019.
Other evidence and findings
In his GTE statement the applicant said that he paid LTCA $10,900 AUD for his tuition in Term 1 2019 in the foundation course, this being 50% of his total tuition fee for this course. Although I have not seen a COE for the foundation course, or any other enrolment record for it, I accept that this amount is likely to have been paid by his parents for his tuition in this course and that another $10,900 was to be paid by them for Term 2 in that year.
He states that the foundation course was of no use to him because he was not learning anything from it, he could not get any credits in the BC for having completed it, and that he had consultations with student services at LTCA and requested permission to go directly into the BC. As his evidence on these topics is broadly consistent with the contemporaneous documentary material, I am prepared to accept it.
The LTCA Interim Transcript for the foundation course indicates that he passed 3 out of 5 units in Term 1 2019. He confirmed as much in his oral evidence. Based on this and other evidence, including his assertion that he is an outstanding student, I infer that his mediocre performance in this course is best explained by a lack of application more than anything else. I do not accept his assertion, if indeed it forms part of his review case, that he was incapable of engaging productively with it on mental health grounds.
He goes on in the GTE statement to give various other reasons why he could not resume studies during 2020, and in the later years. He says that he could not cope with the stress of COVID, his mother became ill, and his father was struggling to provide for his family in Pakistan.
Just pausing here, his parents have given evidence in their sponsorship affidavit which in no way corroborates the applicant’s implicit assertion that financial constraints had anything to do with his failure to enrol in a registered course during COVID. More particularly, there is no evidence from his father that he was having trouble meeting the applicant’s tuition fees and other expenses in Australia. Indeed, the impression I have from reading this affidavit is that his family is, and has been at all relevant times, financially secure.
Returning to his GTE statement, the applicant says that during his return visit to Pakistan in April 2022 he informed his parents, apparently for the first time, that he had not been studying and discussed with his father the prospect of him enrolling in hospitality courses with a view to them operating a restaurant one day. He says this was a turning point for him and that, when he returned to Australia in May 2022, he started to explore the possibility of working in a commercial kitchen.
In early 2023 he procured offers for enrolment in hospitality courses from two providers, namely Acumen Education and Education Access Australia, copies of which are attached to his statement, but he says, and I accept, that he could not pursue them because he had no study rights at this stage.
The Movements Details record confirms that he departed Australia in April 2022 and that the Bridging visas granted to him in October of that year and in July 2023 had no study rights attached to them.
He concludes his GTE statement with assertions to the effect that his parents can now afford to meet his tuition fees and that, despite having been demotivated by the flaws in the system here, he had not lost hope.
Given the other evidence he has led, I have no difficulty accepting that his parents have the means to meet his education and other expenses, including the costs of studying a package of hospitality courses.
In support of his review case the applicant relies on three reports from Dr Rasool, these being the 2019 and 2022 reports mentioned earlier, together with an up-dating report of 20 October 2023. I can thus only assume that he continues to maintain that he has, until recently, suffered from a depressive disorder.

The medical reports are broadly to this effect. Dr Rasool states that the applicant was consulting him before he came out here, that his condition deteriorated after he arrived, that by July 2019 he was suffering from a “major depressive disorder” and that his condition “got even worse” during COVID when he had on-line sessions and was unable to concentrate on his studies. In his 2023 report Dr Rasool reiterates those views but does not in terms deal with the question of whether the applicant’s mental condition has improved.
I am unable to place any real weight on these reports given the insubstantial, and indeed rather cryptic, form in which they have been written. There are no instruction letters in evidence, no recital in these reports of any meaningful history, no indication of whether any tests were carried out to support the diagnosis of a major depressive disorder in July 2019 or subsequently, no indication that any other tests were carried out by the author at any later stage, no findings stated to support his foundational conclusions, and no reasoning process is exposed.
In the applicant’s post-hearing Document Submission, a copy of the 2019 report has been provided to the Tribunal but (as mentioned earlier) this is obviously a draft of the report which the applicant sent to the delegate in response to the NOICC. The drafter of this report, whoever it might have been, had apparently intended that Dr Rasool would complete it by inserting his name where indicated in the draft but instead of doing that he simply signed the report in the draft form it was given to him, did not insert the required detail and apparently returned it in that form whereupon, as far as I can tell, it was sent back to him for re-signing in the form ultimately presented to the delegate.
I have lingering concerns about how these reports came into existence given they were apparently written here and sent to a specialist medical practitioner in Pakistan who, looking at their content, obviously knew they would be used by the applicant to support his case.
I do think that Dr Rasool’s conduct in approving the draft 2019 report without apparently reading it was unfortunate at best and raises other questions about the veracity of his conclusions, certainly those expressed in that report.
In any event, his finding in that report that the applicant was suffering from a “major depressive disorder” in July 2019 is impossible to reconcile with the applicant’s own conduct in connection with his attempts at that time to persuade LTCA to enrol him directly in the BC notwithstanding his mediocre performance in the foundation course or, failing that, to release him from the BC so that he could pursue other studies on his terms.
Either Dr Rasool was not given this information when he approved the draft 2019 report, or he has completely overlooked it when providing the report. I strongly suspect the former. Certainly, there is no evidence that he was given this information.
The post-hearing Document Submission also includes the applicant’s letter dated 1 August 2019 to LTCA by which he instituted the internal appeal process from the refusal to release him. I gather this is the letter he refers to in his email to the LTCA Ombudsman sent on 29 August 2019 at 4.26 am. In this letter logical if mis-guided reasons are given for him wanting to by-pass the remainder of his foundation course.
The applicant does not mention in this letter any adverse medical history, let alone that he was suffering from a major depressive disorder at that or any other time. Indeed, the form and content of the letter leaves me with the distinct impression that he well knew what he was doing, why he was doing it and, no less importantly, that he at least subjectively believed he could engage directly with studies at the higher level, if given the opportunity.
In his GTE Statement the applicant says that he has always been a quick learner, but he has provided no credible evidence to substantiate this assertion. His interim results in the foundation course, of which LTCA would no doubt have been aware, do not suggest to me that he has outstanding academic abilities. Indeed, his performance in this course tends to suggest that he may well have struggled at the higher level had he got there. Passing only 3 from 5 subjects by the end of Term 1 2019 certainly does not suggest to me that he had wind in his sails and was on track to complete that course by the end of Term 2 in that year, its projected end date.
In any event, the applicant’s review case, as it was ultimately presented, depends in no small way on the proposition that LTCA’s stated position on the transfer was flawed in that it unreasonably prevented him from enrolling directly in the BC, or in some other equivalent course at another provider, a situation which (he says) could not be rectified before other events, such as COVID and the loss of his relatives, intervened and led to a deterioration of his condition and eventual continuation of his enrolment hiatus.
His documentary case establishes, clearly enough, that some providers were making offers to him which were subject to a release from LTCA. The one from SCU for enrolment in the BIT, the course which he specified in his LTCA application, was made on that condition as were those from the Melbourne Institute of Technology and the Melbourne Polytechnic Institute. On the other hand, and despite Mr Ali’s oral submissions to the contrary, Edith Cowan University only required him to complete his foundation studies to a certain level while the Imperial College of Australia offered him a place in a vocational IT package without that or any other relevant requirement having to be met. Certainly, there is nothing to suggest otherwise in its letter of 8 October 2019.
In the Post Hearing Submission of 1 November 2023, it is put that LTCA’s refusal resulted in the applicant being unable to continue with his studies in Australia which in turn led to the breach of the enrolment condition and his eventual visa cancellation. More particularly, the applicant contends that the relevant provisions in the National Code 2018 (Standard 7.1) in effect prevented the other providers from knowingly enrolling the applicant in any other registered course prior to him completing 6 months of the BC unless LTCA released him from that course.
I have no difficulty with the proposition that registered providers are required to comply with that and other provisions in the Code and that the apparent purpose of Standard 7.1 is to ensure that international students who are seeking a transfer from one provider to another will do so only for legitimate academic reasons. I also accept that a provider who turns a blind eye to the question of whether a transferring student meets these requirements may well be regarded as having acted knowingly and thus put itself in breach of the required standard.
I also accept that a provision such as Standard 7.1 of the 2018 Code is designed to promote responsible conduct among international students and providers alike.
Although it may be that the applicant sought the release from LTCA for reasons which he genuinely believed were legitimate I do not accept that, when faced with the refusal and the likely cancellation of his COEs at LTCA, he was entitled to discontinue his studies at that provider and, in doing so, in effect render it impossible for him to meet the transfer requirements.
In his oral evidence the applicant said that he ceased studies in the foundation course because he did not think it was worthwhile completing it, he felt that LTCA were being unfair in not permitting him to go directly into the BC and/or in refusing to release him from that course, so that he could study elsewhere. But there is no evidence from him to the effect that he sought any advice from his agent, whose details he included in the LTCA application form, nor is there any evidence to the effect that he accepted any of the offers for enrolment which did not require him to procure a release from LTCA or complete the foundation course.
In any event, the applicant clearly had the option of continuing with his foundation studies in these circumstances and completing them in Term 2 2019, or as soon as was practicable, and proceed to engage with the BC for the minimum period of 6 months to meet the transfer requirements under the Code.
He also had the option of preserving his enrolment status at LTCA by deferring his studies in the foundation course and/or seeking advice from the Department regarding his position and acting in accordance with that advice.
There is no evidence that he did any of those things. The inevitable inference in these circumstances is that he simply put his head in the sand and, because he thought the system was flawed, adopted the position that he could sit back and do nothing in the way of study until in or about January 2023, about 3.5 years later, when he procured the offers for enrolment in the hospitality packages.
I do not accept that it was reasonable for him to cease studies in the foundation course when he did simply because he did not think he should have to complete it, or simply because he did not want to. His oral evidence was to the effect that he could not see how the course would help him because he would not gain any credits in the BC for having completed it. Given it was a foundation course, the fact that he would gain no credits for it in higher level studies was unremarkable and could not possibly provide a basis for him taking the position which he did.
It may be that the reasons which LTCA gave for refusing to meet his demands were not impeccable, and indeed may have been flawed but, in my view, that did not give him an excuse to cease studies in a course in which he had already made some progress, invested not inconsiderable resources and which, if completed, would have assisted him to move into his preferred field of study once the other requirements were met.
The applicant seems to me to have put himself in an untenable position by electing to cease studies in that course, a step which inevitably led to the cancellation of his COEs at LTCA. There can be no suggestion in these circumstances that the cancellation of his enrolments at that provider came about unintentionally or because of events beyond his control, nor are there any compelling or compassionate circumstances to ameliorate or mitigate what he did.
On my findings, the applicant was capable of productive study as from August 2019 but chose not to. I do not accept his self-serving assertions to the effect that he did not intend to put himself in breach of the enrolment condition, nor do I accept the evidence of Dr Rasool that he was suffering from a major depressive disorder as from July 2019.
There is no credible medical or other evidence to establish that the applicant was unable to engage in productive study during the pandemic, or because of the other more personal events, including the illness of his mother. I do not accept his evidence that he was, because of these events, depressed to such an extent that he was incapable of functioning effectively and engaging in productive study.
As noted earlier, in the applicant’s GTE statement he gives evidence to the effect that he now wants to study a hospitality package in Australia and pursue a career in that field, more particularly to operate a restaurant in Pakistan with his father once he retires from his current employment in Saudi Arabia. He said this idea came from his father during a return visit to Pakistan in April 2022 and that it was a turning point for him. The Job Letter of 18 May 2023 from the restaurant in Saudi Arabia records that his father has been working there as a manager since March 2019.
Although neither of the offers for enrolment in the hospitality courses are subject to release or other relevant academic requirements, they could not have been accepted by the applicant in January 2023 because he was by that stage on a Bridging visa which had no study rights. He has given evidence that he applied for study rights at the time he procured these offers but, absent any contemporaneous documentary evidence to this effect, I do not accept that he has taken any meaningful steps in that direction. He was granted another Bridging visa in July 2023 on the same condition, but this was because his earlier Bridging visa had ceased.
Nor do I accept his assertion that he is motivated to study hospitality because he wants to go into business with his father in Pakistan. In his sponsorship affidavit of 19 October 2023 his father states that he has been working in Saudi Arabia since January 2005, says that he also operates a real estate business in Pakistan, but does not suggest that he has any intention to return to that country.
It may well be that the idea of the applicant pursuing a career in hospitality came from his father, but I do not accept his evidence that he genuinely wants to engage with studies in this field for legitimate career related reasons. Too much water has gone under the bridge for this asserted plan to be taken seriously. If he had genuinely wanted to engage with studies in this field, he would have taken steps in that direction shortly after he returned from Pakistan on 14 May 2022 when he still had study rights.
I infer that the offers to enrol him in these hospitality courses were obtained by him in January 2023 predominantly for strategic purposes.
I agree with the delegate that the purpose of the applicant remaining in Australia since August 2019 has not been in line with the purposes for which his TU-500 visa was granted to him in February of that year. This, on any view, is a significant adverse factor.
The delegate considered the other relevant factors in the decision under review and, in my assessment, attributed to each of them appropriate weight. On the evidence which I have accepted, there is nothing in these circumstances to ameliorate the consequences of this extensive breach.
Nothing has taken place since his decision, so far as the evidence goes, to warrant me attributing different weights to any of these factors in a case which involves an extensive breach of this fundamental condition.
Viewed in that way, the reasons to cancel the applicant’s visa clearly outweigh the reasons not to cancel it.
Summary and conclusion
In August 2019 the applicant, faced with LTCA’s refusals, could have either completed his foundation studies and meet the other release or transfer requirements, or cease studies in that course, permit his enrolments to lapse and, ultimately, take his chances. He unwisely elected to roll the dice.
There was, in my view, nothing improper in LTCA refusing to permit him to go directly into the BC without first completing the foundation course, nor could he reasonably expect it to release him from that course in the circumstances which then existed.
It seems to me that LTCA’s decision was not unreasonable in these circumstances, and that it fulfilled its obligations under the 2018 Code by responding to the applicant’s demands in the way it did.
The applicant, on the other hand, acted unreasonably in ceasing studies in the foundation course simply because he could see no value in it. He had other options which he could and should have taken.
Ultimately, and despite having put forward an elaborate review case, the applicant has not satisfactorily explained his deliberate conduct in ceasing studies at LTCA when he did, nor has he adequately explained, on the evidence I accept, why he took no steps to regularise his enrolment position in a timely manner.
There are, on the evidence which I accept, no ameliorating circumstances in this case, or at least none which could warrant a different outcome.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michael Bradford
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.

[2024] AATA 2194

14 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction