Javed (Migration)

Javed (Migration) [2020] AATA 4342 (26 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Azhar Javed
CASE NUMBER:  1932306
HOME AFFAIRS REFERENCE(S):          BCC2019/3261877
MEMBER:Michael Biviano
DATE:26 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 26 August 2020 at 7:10am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled at the required AQF level – consideration of discretion – length of non-compliance – responsibility for maintaining level of enrolment – not beyond the applicant’s control – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 November 2019 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 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with subclause 2(b) of condition 8202 of his visa, as he was not enrolled in a registered course at the same level, or a higher level, than the registered course in relation to which the visa was granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 3 August 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·must be enrolled in a full-time registered course: 8202(2)(a);
·must maintain enrolment in a registered course that once completed will provide a qualification from the Australian Qualifications Framework (AQF) that is at the same level as, or at a higher level than, the registered 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), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis the applicant was in breach of subclause (2)(b) of condition 8202 of his visa, as he was not enrolled in a registered course at the same level, or a higher level than the registered course in relation to which the visa was granted for the period from 8 March 2018 to the cancellation of the visa on 7 November 2019.
The decision record of the delegate of the Department of Home Affairs on 9 November 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa, which was granted on 3 November 2017, and gives the reasons for the cancellation of the visa (Decision Record).
The applicant prior to coming to Australia completed schooling in Pakistan where he had a Diploma in Marketing and had obtained qualifications as a dental hygienist. The applicant used his marketing qualifications to work in a pharmaceutical company in Pakistan.
The Decision Record confirms that the applicant came to Australia on 24 January 2014 pursuant to a student visa. He had enrolled to undertake English for Academic Purpose courses, which he completed and a Bachelor of Business at the Australian Institute of Higher Education. He gave evidence that he failed all subjects in that first semester of the Bachelor of Business. His explanation for his poor performance was that he could not understand the course and what he was being taught.
The applicant gave evidence that he changed his enrolment in 2015 and he enrolled in a Bachelor of Accounting at Elite College. The applicant studied for 4 months in that course and the course was not suitable for him. He changed his enrolment and undertook a Diploma of Leadership and Management, which he claims that he enrolled in around August or October 2015 and he completed in February 2017.
On 8 May 2017 the applicant enrolled in a Bachelor of Accounting at UBSS. At the time of making his application for a student visa, he was enrolled in that course and the student visa was granted to enable him to complete the Bachelor of Accounting. The visa was to conclude on 30 May 2020, to enable him to complete the bachelor’s degree which would have resulted in his stay in Australia being approximately 6 years.
The applicant was granted a Student (Higher Education) (Class TU 500) visa on 3 November 2017. At the time of applying for the visa he had undertaken to study a Bachelor of Accounting at UBSS, which is a course at level 7 of the AQF.
The applicant gave evidence that he struggled with his studies in the Bachelor of Accounting. He claimed those struggles arose from:
a.His father having a stroke in 2017 and being hospitalised, which occurred at the time of his exams;
b.His wife who was pregnant, was also suffering from high blood pressure in October 2017.
The applicant claims that those matters caused him to stress and worry and to perform poorly in his exams. His wife gave birth on 7 November 2017 to a daughter.
The applicant claims that he changed courses because he went home after the conclusion of the 2017 school year and spoke to his parents. He told them of his struggles with the studies in the bachelor’s degree. They recommended that he take up studies in the automotive field so that he could return to Pakistan and get a job at Akbar Auto Care.
The applicant claims that he researched the courses available and noticed that there was no bachelor’s degree available. He enrolled in the following automotive courses:
a.a Certificate III in Light Vehicle Mechanical Technology at Adelaide Technical Education which he commenced on 26 February 2018 and he completed the course on 23 December 2018, and he obtained the Certificate on 7 January 2019;
b.a Certificate IV in Automotive Mechanical Diagnosis at Adelaide Technical College, which he commenced on 21 January 2019 and he completed the course on 14 July 2019, and he obtained the Certificate on 30 July 2019;
c.a Diploma of Automotive Technology at Adelaide Technical College, which he commenced on 5 August 2019 and was to complete on 16 February 2020, which was extended to 16 August 2020, due to the cancellation of his visa.
The Decision Record confirms that the applicant’s enrolment in the Bachelor of Accounting was cancelled by the education provider from 8 March 2018. On 26 February 2018, he enrolled in the aforesaid automotive courses at Adelaide Technical College. The Diploma was the highest level course, which was at level 5 of the AQF.
On 9 October 2019, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa.
On 14 October 2019, the applicant, through his migration agent, provided a response to the NOICC (Response). As part of the Response the applicant, through his representative, submitted submissions and supporting documents, including:
a.Duly executed form 956;
b.Transcript of Advanced Diploma in Business Management;
c.Transcript of Bachelor of Accounting;
d.Transcript of Certificate III in Light Vehicle Mechanical Technology;
e.Transcript of Certificate IV in Automotive Mechanical Diagnosis;
f.Confirmation of Studies in Diploma of Automotive Technology;
g.Job Offer from Akbar Auto Care;
h.Email from Group Colleges Australia dated 20 February 2018, confirming the cancellation of the course.
On 3 August 2020, the day of the hearing, the applicant submitted further documentation which included a statement which had annexed the following supporting documents:
a.Advanced Diploma of Leadership and Management – Certificate and Transcript from QIBA dated 7 February 2017;
b.Certificate III in Light Vehicle Mechanical Technology dated 7 January 2019 − Letter of Completion, Certificate, Transcripts & Confirmation of Work Placement;
c.Certificate IV in Automotive Mechanical Diagnosis dated 30 July 2019 − Letter of Completion, Certificate, Transcripts & Confirmation of Work Placement;

d.COE numbered B5CE0484 for the Diploma of Automotive Technology created 27 February 2020 and letter of confirmation of studies dated 30 July 2020;
e.Bachelor of Business – COE numbered BB93CB45 to study at the Adelaide Institute of Higher Education dated 31 July 2020 with study dates commencing 24 August 2020 and concluding on 24 February 2023 & indicative study plan;
f.Bachelor of Accounting – Academic Transcript from UBSS dated 9 December 2017;
g.Certificate from Queen Anne College dated 5 August 2014 confirming completion of English for Academic Purposes Level 2;
h.Medical certificate for his father – Javed Iqbal dated 21 July 2017;
i.Medical certificate for his wife – Sehrish Asghar dated 13 October 2017;
j.Medical report for father’s coronavirus test result – 28 June 2020;
k.Letter from Akbar Auto Care dated 23 April 2020, confirming that the applicant’s position of chief auto mechanic had been filled and the job offer withdrawn.
The statement provided omitting formalities:
Thank you for your invitation to attend a combined hearing dated 03 August 2020. I would like to make this submission in regards with an application for review of a decision made by a delegate of the Minister for Immigration on 07 November 2019 to cancel my Subclass 500 Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).
I received a Notice of Intention to Consider Cancellation, as well as a Notification of Decision to Cancel Visa under s116 of the Migration Act 1958 (Cth), dated 07 November 2019. I accept that I failed to maintain enrollment in a registered course that, once completed, would provide a qualification from the Australian Qualifications Framework which is at the same level as or at a higher level than the registered course in relation to which the visa was granted, therefore breaching my visa condition 8202. I am also aware that this visa cancellation is discretionary and the following submission, based on my circumstances, will demonstrate why I believe my current visa should not be cancelled it should be noted that I have always been truthful and cooperative in my dealings with the Department of Home Affairs.
Circumstances around the breach of Visa condition 8202
I first arrived in Australia in 2014 on a student visa to undertake a Bachelor of Business at
AIH. However, I was unable to cope with the standard of education in Australia, which after
speaking with the student counsellors, I realized that many international students require
additional support and assistance to get accustomed to the education system and
teaching approach in Australia.
Unable to handle the style and intensity of lessons, I was unable to pass the units that I undertook.
Upon an advice from the student counsellor, I decided to enroll in a course with the intention that I would eventually progress to the Bachelor degree. This could be a pathway program which would give me the ground level understanding of the style of education in Australia.
Upon completing the same and having progressed to Bachelor of Accounting in 2017, I got my visa extension. During that time I received the bad news about my father being gravely unwell and was hospitalized due to a stroke. That happened during my exams. I was struggling to keep up with my studies and concerned about the forthcoming exams. Neither could I travel back home, nor could I focus on my studies here. I therefore failed my semester at that time. It was around the same time that my wife was pregnant and struggled with high blood pressure which was also due to my father’s illness and my absence.
I discussed this situation with my parents, and they advised me that I should enroll in an
Automotive course since I could get a job at Akbar Auto Care upon returning to Pakistan. I had already been struggling in a course without having any prerequisite knowledge of the subject, I did not want to start my career in Pakistan with the same situation, i.e. not having any prerequisite knowledge of the occupation. I followed this advice.
I started my research on bachelor’s in automotive field but to my dismay, I found that there are only few universities which offered automotive related degrees like Edith Cowan University and RMIT University. Besides, eligibility criteria for both of the institutes required an intermediate qualification (year 12) in engineering or math related subjects which was different from what I had.
Further in my research, I found that there were different courses available in automotive field in institutes such as Kangan institute in Melbourne, Baxter institute in Melbourne, TAFE in Western Australia, Adelaide College of Technical Education Adelaide, Swann college Adelaide, etc. I chose Adelaide because Adelaide has a history in car manufacturing. Companies like Holden and Mitsubishi have plants in here, so I believed that I could get more theoretical and practical knowledge. I therefore enrolled in Certificate III in Light Vehicle Mechanical Technology and a Certificate IV in Automotive Mechanical Diagnosis from ATCE (Adelaide College of Technical Education). After finishing aforementioned courses, I also got enrolled in the Diploma of Automotive Technology from ACTE, which I was supposed to complete by 16 February 2020. However, later I came to know that since my visa had been cancelled, my COE was also cancelled and I was no longer enrolled in the course. After receiving bridging visa I got myself enrolled back into that same diploma but my completion date got delayed to August 2020. Once I finish my diploma I plan to get back to my original bachelors degree program which was my intention all along. I am now enrolled to study bachelor’s in business and I expect to start by 24th of August. In recognition of my prior courses I have received exemption for 7 courses out of 24.
I was oblivious of the fact that the enrollment in a lower level course was a breach
of the requirements of my student visa. I certainly admit that I breached visa
condition 8202 but I did not comprehend the legalities of the matter and
the conditions I unintentionally breached.
Reason for recent enrolment in a bachelor’s degree
In March 2020 I spoke with my father who stated that he will send money for
my bachelor’s in business. However, due to the sudden lock down and
growing numbers of Corona virus cases in Pakistan, it became impossible until recently.
It was mainly due to the unfortunate fact that my father got infected with corona virus
in Pakistan. It took some time but fortunately my father recovered completely and then
sent me the funds to pursue my bachelor’s degree.
I always had the intention to undertake my Bachelor from Australia as that is the
main reason that I came here for. It took me some time to get to a point where I feel
comfortable with my capacity to do so successfully. This is why I am starting my bachelor
degree starting at the end of August, which is immediately after the completion of my
Diploma. Whilst re-enrolling in a bachelor's degree does not ameliorate the breach, it does
indicate a genuineness of intention.
The fact that I studied throughout my time in Australia, including the present, I
would request the Tribunal to consider that education continues to be my purpose
of being in Australia. I believe that my continued enrollment and eagerness to study
in Australia over a period of time, in spite of making a couple of failed attempts
in undertaking my Bachelor's degree, I demonstrate my genuine intentions to study in Australia. I would request you to kindly consider that II did study throughout the period of the breach, albeit at a lower level which was solely due to my ignorance and unawareness in this matter, which I have rectified at the first chance that I got.
Based on the above statements, I therefore request the Member to kindly consider revoking the visa cancellation on the grounds of ‘compelling reasons and compassionate circumstances’.
Both the applicant’s evidence and the statement confirm that the applicant was from 8 March 2018 enrolled in courses that were not the same or higher level than a level 7 course, and therefore in breach of condition 8202(2)(b) of the visa from 8 March 2018 until the cancellation of the visa on 7 November 2019, being a period of 20 months, which is a very long period of time to be in breach of his visa.
By reason of not being enrolled in a course at level 7 of the AQF or higher from 8 March 2018 and then being enrolled at a lower level course, he did not meet condition 8202(2)(b) of his visa.
On the evidence before the Tribunal, the applicant has not complied with condition 8202(2) of his visa for a period of 20 months. As this was a condition that was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b) of the Act.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or to remain in Australia
The applicant gave evidence that he came to Australia to study and undertake the courses as discussed above.
As discussed above, the applicant has been enrolled in courses and studied since his arrival in Australia. He enrolled in and unsuccessfully studied in 2014 and 2015 a Bachelor of Business at the Australian Institute of Higher Education and a Bachelor of Accounting at Elite College. He studied and completed an Advanced Diploma of Leadership and Management at QIBA between 2015 and 2017.
He again enrolled in and studied a Bachelor of Accounting at UBSS in the second half of 2017, in which he failed 4 out of 4 subjects studied.
He then enrolled in the automotive courses; as at the date of the hearing he had completed the Certificate III and Certificate IV, and notwithstanding he had lost enrolment in the Diploma of Automotive Technology due to the cancellation of the visa, he had impressively obtained a further enrolment in that course and as at the time of the hearing he had nearly completed the course, which was scheduled to conclude on 16 August 2020.
The applicant on 31 July 2020, immediately prior to the hearing enrolled in a Bachelor of Business, which is at level 7 of the AQF, which is expected to conclude on 23 February 2023, which would result in the applicant staying in Australia for more than 9 years to conduct his studies. The Tribunal notes that it is the applicant’s fourth attempt to obtain a bachelor’s degree.

The applicant has studied consistently whilst he has been in Australia including after the cancellation of the visa.
The applicant gave evidence that he intends studying and completing the Bachelor of Business. He claims that his plan is to complete the Bachelor of Business and return to Pakistan and open an automotive parts business along the lines of Repco here in Australia, as there is no equivalent in Pakistan.
Having regard to the applicant’s evidence and his conduct of continued study during the time he has been in Australia, the Tribunal accepts that the applicant travelled to Australia and stayed here to study, and he has studied here during his stay and he intends to study here in the future.
In relation to the above matters, the Tribunal gives these matters some weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant was not enrolled at the appropriate level course from 8 March 2018 until the cancellation of the visa on 7 November 2019, being a period of 20 months. Therefore the applicant has not complied with condition 8202(2) for a very long period of time. The non-compliance with condition 8202(2) for such a very long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason for non-enrolment.
The applicant gave evidence that he was unable to maintain his enrolment in the Bachelor of Accounting because he struggled with the first semester as he was concerned and worried about his father who had a stroke in mid 2017 back home and his wife who was pregnant and suffering from high blood pressure in October 2017, which distracted him from his studies. The consequences of those events were that he failed all 4 subjects that he studied in the first semester. He then decided to study the automotive courses and he lost his enrolment in the Bachelor of Accounting.
While those events explain losing the enrolment in the Bachelor of Accounting, they did not explain why he was not enrolled in a course at the level of at least level 7 for a period of 20 months. While the applicant may have decided to study the automotive courses, he knew or ought to have known that while studying those courses without being enrolled in a course at the level of at least level 7, he was in breach of the visa.
While the Tribunal does accept the applicant’s explanation for losing the enrolment in the Bachelor of Accounting, it is not satisfied that it explains why he was not enrolled in a course of at least at level 7 of the AQF.
Whilst the Tribunal understands that the applicant changed his course of study to the automotive courses, the applicant was obliged to meet his visa conditions and it was his responsibility to maintain enrolment in the appropriate level of course. If he could not maintain that level of enrolment, it was open to him to apply to the Department for a new visa.
The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa.
Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a Bachelor level course or higher.
Having regard to the substantial period of the breach, and that the applicant was responsible for not being enrolled in the appropriate level of course, substantial weight is given towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.
The applicant gave evidence that the visa cancellation would cause him and his family a substantial degree of hardship. He gave evidence that he would go back to Pakistan, but he would have considered himself a failure and lose all confidence. He claimed that return from Australia without a bachelor’s degree would be difficult for him as he has an educated wife and his father had spent substantial monies on him to get a bachelor’s degree. He was concerned about how he could tell them face-to-face that he had failed in getting a bachelor’s degree.
The applicant has been in Australia for more than 6 years and has had ample opportunity to complete a bachelor’s degree if it was so important to him. The applicant conceded in evidence that:
a.He did not require a Bachelor of Business to commence his automotive parts business;
b.There was nothing preventing him returning to Pakistan to commence studies in a Bachelor of Business back in Pakistan.
The Tribunal notes that the applicant has completed an Advanced Diploma of Leadership and Management, a Certificate III and Certificate IV out of the automotive courses and he had substantially completed the Diploma of Automotive Technology as at the date of the hearing. The tuition fees will not have been wasted.
However, the Tribunal accepts that there will be some hardship caused to the applicant and his family if the visa is cancelled.
While the Tribunal finds that these matters may be the consequences of the visa cancellation, they are not matters which would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters add some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
The guidelines indicate that, as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.
The applicant gave evidence as to the circumstances that led to the cancellation of the visa, as set out above.
Ultimately, the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.
The applicant either knew or ought to have been aware that by not being enrolled in a registered course of study at the appropriate level he would be in breach of condition 8202 and that his visa may be cancelled.
The primary purpose of the applicant is to undertake a registered course at a level appropriate to the visa granted. The applicant was not enrolled in a registered course at the appropriate level for a period of 20 months, which is a very long period to be in breach of the visa.
The Tribunal has considered the applicant’s explanations for why he was not enrolled in a registered course at a level appropriate to his visa for such a long period of time, and was therefore in breach of condition 8202(2). The Tribunal accepts the circumstances of why he lost his enrolment in the Bachelor of Accounting, but not why he was not enrolled in a course at the appropriate level for 20 months. The Tribunal gives this matter substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, there was no information before the Department indicating that the applicant had been uncooperative to the Department or any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140 of the Act
As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of visa.
Further, if the Tribunal decides to affirm the decision to cancel the TU 500 student visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet Public Interest Criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next 3 years.
However, these consequences are the intended consequences of the legislation when a visa is cancelled on these grounds.
The applicant gave evidence that if the visa remained cancelled he would return to Pakistan, and therefore there is no indication that he would become unlawful or be subject to detention.
Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to India; he did not give any reasons as to why he could not return to Pakistan and he has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
The Tribunal considers that a relevant matter is whether the applicant is able to obtain enrolment in a registered course at a level appropriate to his visa. If the applicant is unable to obtain enrolment in a course that is at an appropriate level to his visa, this will weigh towards his visa being cancelled, as there would be little utility to setting aside the cancellation of the visa if the applicant would continue to remain in breach of his visa condition.
The applicant gave evidence and provided a COE that he is enrolled in a Bachelor of Business at Adelaide Institute of Higher Education commencing on 24 August 2020, which is a course at level 7 of the AQF and which would make him compliant with the conditions of the visa.
Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Michael Biviano
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.

[2020] AATA 4342

26 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice