Kumar (Migration)

[2020] AATA 1572

Kumar (Migration) [2020] AATA 1572 (30 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nitesh Kumar

CASE NUMBER:  1930462

HOME AFFAIRS REFERENCE(S):          BCC2019/3219202

MEMBER:Michael Biviano

DATE:30 April 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 30 April 2020 at 4:09pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled at lower level than visa requirement – enrolment cancelled after non-payment of fees – father unable to access funds due to civil unrest – enrolment in cheaper, lower-level course – discretion to cancel visa – genuine intention to study – enrolment in lower-level course before cancellation of higher-level course – no explanation for father’s continued inability to transfer funds – father’s health – decision under review affirmed

LEGISLATION

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

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 25 October 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).

2.    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.

3.    The applicant appeared before the Tribunal on 6 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian/Pakistani) and English languages.

4.    The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant was agreeable to the hearing being conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

5.    The hearing of the application had been adjourned from 30 March 2020 after the applicant had sought an adjournment of the hearing for ill health with flu-like symptoms.

6.     At the commencement of the hearing the applicant sought an adjournment of the hearing because he felt unwell. The applicant, through his interpreter, stated he was sick. When pressed about what his symptoms were, he stated that he was sick due to stress. He claimed that he had been unable to prepare for the hearing. The applicant, during his request for an adjournment, appeared lucid and did not appear in any discomfort. He did not present a medical certificate and the previous medical certificate that had been presented to the Tribunal stated that he was unwell for school/work from 24 March 2020 to 31 March 2020. The Tribunal notes that the matters were not connected with his ‘flu’ or underlying medical condition. The Tribunal, having considered the request, indicated that it intended proceeding with the hearing but it would allow the applicant time to make submissions in writing after the hearing if he so desired. The applicant then stated that he would be happy to proceed with the hearing on that basis.

7.    The hearing proceeded by way of telephone. After the hearing, on 14 April 2020, the applicant filed further material with the Tribunal in support of his application.

8.    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

9. 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?

1. 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 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).

1. 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 29 March 2019 to 25 October 2019.

2. The decision record of the delegate of the Department of Home Affairs on 23 October 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 8 November 2018, and gives the reasons for the cancellation of the visa (Decision Record).

3. The applicant completed a Bachelor of Computer Applications at the University of Jammu in or about 2012. The applicant did not obtain work in his home country. In 2014 he applied for and obtained a student visa to come to Australia to study a Master’s of Information Technology at Charles Sturt University.

4. The applicant was enrolled in the Master’s of Information Technology course from 21 July 2014 to 15 July 2016, and he completed that course at Charles Sturt University.

5. After the completion of the Masters of Information Technology, in October 2016, the applicant applied for and obtained a graduate Subclass 485 visa to work in Australia for a period of 2 years. That visa expired on 18 October 2018.

6. During this time, the applicant undertook a professional year and training and worked in numerous Information Technology contracting positions developing applications.

7. In or about October 2018, the applicant applied for a Student (Temporary) Class TU 500 visa, which was granted on 8 November 2018. At the time of applying for the visa he had undertaken to study a Master’s of Business Administration at Holmes Institute, which is a course at level 9 of the Australian Qualifications Framework (AQF).

8. The applicant gave evidence that he was enrolled in and commenced the Masters of Business Administration at Holmes Institute on 12 November 2018 and the course was to last approximately 1 year.

9. The applicant gave evidence that he commenced studying the MBA and paid an initial tuition fee, which totalled approximately A$7,000, but his father had problems in making payment due to difficult conditions back home. The applicant gave evidence that his family live in Jammu where there had been civil unrest around December 2018, which resulted in shops being closed, the internet not being available, banks being affected and his father being unable to access funds in his bank account. The applicant had submitted to the Department what appears to be a declaration from his father to that effect. The applicant claimed that his father had been unable to wire funds for him to pay his tuition fees for the MBA.

10. He claimed that the costs of the tuition fees for the MBA course were around $30,000 to $40,000, and he had only paid around $7,000. His evidence on these matters was general and not supported by any supporting documentation.

11. He claims that he was unable to meet a scheduled payment for the tuition fees and despite being in contact with Holmes Institute, he was unable to maintain his enrolment. The Decision Record confirms that his enrolment in the Master’s of Business Administration was cancelled on 28 March 2019 for failure to pay tuition fees.

12. The Decision Record confirms that, on 21 January 2019, he enrolled in a Diploma of Project Management at Peach Institute. He claims that the tuition fees for that course were substantially lower, being $6,000 for the year. The course was at level 5 of the AQF.

13. Accordingly, by enrolling in the Diploma course alone, he was enrolled in a course that was not the same or higher level than a Level 9 course, and a breach of condition 8202(2)(b) of the visa.

14. The applicant remained enrolled in the Diploma course, until it was cancelled as a result of the visa cancellation, which caused him to lose study rights. He claims that he has approximately 3 months of studies to complete the Diploma. He gave evidence that he believed that he had paid approximately $3,000 in tuition fees, but his evidence was uncertain.

15. The applicant claims he wishes to finish his studies in the Diploma course and return home. When questioned whether he had made enquiries with Peach Institute as to whether they would allow him to complete the Diploma course, if the cancellation of the visa was set aside, he replied that he had not made enquiries. Such failure to make enquiries was surprising, considering the nature of the application. The Tribunal cannot be satisfied from the applicant’s evidence that if the cancellation is set aside he will be allowed to complete the Diploma of Project Management.

16. On 5 September 2019, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa. 

17. On 9 September 2019, the applicant provided a submission to the Department in response to the NOICC, with supporting documents, including an affidavit/statement from his father dated 14 January 2019 stating that he was unable to pay tuition fees due to civil unrest, which caused the internet to stop working and rendered him unable to access funds in his bank account (Affidavit), and an article about 759 stone pelting incidents in Jammu and Kashmir in 2018. The Response to the NOIC (Response) stated, inter alia, as follows:

    6. That I achieved a great opportunity to get quality education from Australia, after my parents decided to spend a huge money on my Australian education;

    7. That my father is a serviceman and earns money very hard;

    8. That my family belong to state of Jammu & Kashmir in India. The state has volatile political and social situation going on;

    9. That after completion of my above said master's degree I applied and later got Subclass 485 (Post-study stream) visa valid till 18/10/2018;

    10. That I applied further student visa on the basis of doing Master of Business Administration from Holmes lnstitute, Melbourne;

    11. That my father was to fund all expenses related to my that undertaken course;

    12. That in December 2018 all of sudden due to riots and massacres in State of Jammu and Kashmir, the Indian Government and Armed forces closed all our businesses and adversely affected the service. My father had no access to funds in his bank and it was very hard for me to pay my tuition fee at Holmes Institute (Please find attached Affidavit of my father);

    13. That due to change in circumstances in my home country, I was unable to timely pay the fee. The course provider refused to entertain my requests and informed me that they will not allow to continue my course without fee deposit;

    14. That I wished to maintain my enrolment and therefore managed to seek admission into Diploma of Project Management Course with my bonafide intentions to study;

    15. That I am ready to maintain the master's program once my financial position in India becomes better:

    16. That till today the situation of daily imposition of Curfew by the Indian Army are still in operation which has adversely affected my father's business;

    17. That I had above compelling circumstances which were beyond my control that lead to cancellation of enrolment at Holmes Institute and breach of visa condition;

18. The applicant gave evidence that he was not aware that he was in breach of his visa by enrolling in a lower level course. He explained that he had little alternative due to his financial struggles related to enrolling in a higher level course due to the difference in the cost of the course.

19. The applicant provided further material to the Tribunal after the hearing, on 14 April 2020, including a letter from his father (Letter), which stated, omitting formalities:

    I am Ashok Kumar father of my son Nitesh Kumar. I am writing this letter to you after Nitesh told me about his visa status and the situation he is going through.

    I want to bring this to your attention that the current situation here in Jammu and Kashmir is not very good due to constant riots and now Corona Virus pandemic. All business is closed and crime is on its peak.

    Recently, I reported about some activist to the police as they were demonstrating in front of my house. They got arrested and removed from the place. But now I am receiving threat calls from this activist group which is making me and my family stressed and we are not safe here. I have also been advised by the authorities to move from current place for some time now.

    I request you to kindly, please, understand this current situation here in Jammu and Kashmir and the danger situation we are facing by the threats. My health has not been well and I am suffering with diabetes and heart problems making things even worse in this time of pandemic. Life is getting hard due to lockdowns and curfew everywhere.

    I request your good self to please consider the current situation and do not to cancel Visa of my Son Nitesh verma and let him finish his current studies. We have spent lot of money on him so he can get international qualification. He is the only hope of the family that he will get good Job scope here in India and will support us in the future.

    Also, in this current situation I will recommend my son Nitesh to stay there in Australia as he is not safe here in Jammu &Kashmir at all due to this activist group issue and the Corona pandemic.

20. On 15 April 2020, the applicant filed a further submission (Submission) in support of his review application.

    1)  That I have never intentionally breached any of my student visa conditions and have no adverse information held with the Department of Home Affairs, previously;

    2)  That I wished to maintain my enrolment and therefore managed to seek admission into Diploma of Project Management Course with my bonafide intentions to study;

    3)  That I am ready to maintain the master’s program once my financial position in India becomes better;

    4)  That till today the situation of daily imposition of Curfew by the Indian Army and local police due to Corona Virus pandemic are still in operation which has adversely affected my father’s business and my family;

    5)  That I had above compelling circumstances which were beyond my control and that lead me to this situation today;

    6)  That if my visa is cancelled it would injure my reputation in my community in Australia and my home country and will be a great loss of money and reputation for my parents and family. Such loss cannot be repaired if I returned my country without qualification after having visa cancelled;

    7)  That in event of cancellation of visa, it will impact my life and each member of my family life back in my home country;

    8)  That my father is very noble person and have great reputation in India, if my visa gets cancelled, he will not bear this, and it may cause serious consequences for me;

    9)  That I am left with 3 months of studies more to go therefore, it is requested that kindly consider my above submission and apply a lenient approach to my matter and kindly do not cancel my visa.

21. The applicant conceded in evidence that he was not enrolled in a registered course that, once completed, would provide him with a qualification from the 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 from 29 March 2019 to the cancellation of the visa on 25 October 2019, being a period of 6 months and 27 days. By reason of not being enrolled in a course at level 9 of the AQF or higher and being enrolled at a lower level qualification from January 2019, he did not meet condition 8202(2)(b) of his visa.

22. On the evidence before the Tribunal, the applicant was not enrolled in a course at level 9 of the AQF or higher from 29 March 2019 to the cancellation of the visa on 25 October 2019. Accordingly, the applicant has not complied with condition 8202(2) of his visa. 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

1. 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

1. The applicant gave evidence that he came to Australia to study and undertake the courses as discussed above. 

2. As discussed above, the applicant has been enrolled in courses and studied since his arrival in Australia.

3. The applicant initially studied and completed a Master’s of Information Technology (Computer Networking) and then obtained a graduate Subclass 485 visa, and he worked and lived in Australia from October 2016 to October 2018 for the purposes of gaining experience. He unsuccessfully studied a Master’s of Business Administration, from November 2018 to 28 March 2019, when his enrolment was cancelled. He withdrew from study as he was unable to afford the tuition fees for the Master of Business Administration at Holmes Institute, due to his father encountering financial problems back home in India as a result of being unable to withdraw funds from the bank. In the meantime, in January 2019, he enrolled in and studied a Diploma of Project Management at Peach Institute, which was a more affordable course.

4. The applicant claims that he has a further 3 months of study to complete the Diploma of Project Management. He gave evidence that he is very keen to complete that qualification.

5. 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 intends to study in the future.

6. The applicant was continuously enrolled in a registered course as set out above, but not at the appropriate level for the substantial period of 6 months and 27 days, and 12 months and 25 days; the Tribunal gives these matters some weight towards the visa not being cancelled.

The extent of compliance with visa conditions

1. The applicant was not enrolled at the appropriate level course from 29 March 2019 to the cancellation of the visa on 25 October 2019.  Therefore the applicant has not complied with condition 8202(2) for a substantial period of time.  The non-compliance with condition 8202(2) for such a substantial 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. 

1. The applicant gave evidence that his father was primarily responsible for the payment of his tuition fees. The applicant in the material filed, including the Response, the Affidavit, the Submission and the Letter, also gave evidence that confirmed that conditions in the applicant’s home province in India of Jammu & Kashmir, were such that, due to riots and civil unrest, the applicant’s father was unable to access funds to pay for his tuition fees for the MBA course in January 2019. The applicant gave evidence that when he was told of his father’s difficulties with his bank, his father said that he could not send money and he had to wait for payment. He told representatives at Holmes Institute that they had to wait for payment. Payment did not come. The applicant claims this lead to his enrolment in the MBA course being cancelled, which lead to the breach in the visa condition of not being enrolled in a course at the appropriate level.

2. However, the difficulties with accepting that evidence as the cause of the breach are that:

a.The applicant enrolled in the Diploma of Project Management on 31 January 2019, which was nearly 2 months before the cancellation of the MBA course. If the applicant was hopeful of receiving funding from his father, he would not have enrolled in the Diploma of Project Management course until it was confirmed that the enrolment in the MBA course had come to an end;

b.The applicant’s evidence did not suggest that the financial position of the applicant’s father had improved, in that he was still unable to access funds. The evidence was vague as to why his father could not transfer funds from his bank account in India. While interruptions to the internet may explain a short delay for transferring funds to Australia, they do not explain a delay from December 2018 to April 2020, which is a delay of nearly 18 months.

c.If the financial position of the applicant’s father is so dire that he cannot afford to pay the tuition fees for the Master’s course, or if he was not in a financial position to make funds available to pay tuition fees, then the applicant had the opportunity to enrol in another course at level 9 of the AQF to meet the conditions of his visa, or apply for a new visa at a lower level.

d.The Letter and submissions confirm that difficulties remain in Jammu and Kashmir, and that the applicant intends to maintain the Master’s course once his father’s financial circumstances improve.

1. Whilst the Tribunal accepts that the applicant changed courses due financial difficulties, 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.

2. The Tribunal does not find the applicant’s reasons for not being compliant with the visa compelling in circumstances where the applicant was aware that he would be in breach of his visa by enrolling in the Diploma of Project Management.

3. 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. 

4. 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.

5. The Tribunal finds that the reasons for not being enrolled in a Master’s level course or higher were the responsibility of the applicant.

6. 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, some weight is given towards the visa being cancelled.

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

1. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

2. The applicant gave evidence that, as set out in both the Response and the Submission, the visa cancellation would cause him and his family a substantial degree of hardship as his father is a noble person with a great reputation and his father would not be able to bear his son’s visa being cancelled and his studies being terminated. Further, in evidence he stated that hardship would be caused as a result of the cancellation because:

a.His family would have spent between $3,000 and $4,000 on the Diploma of Project Management, which would be wasted if he could not complete the course;

b.His father is suffering from diabetes and stress, and is in a difficult position by reason of circumstances at home. The applicant’s failure to complete his studies and the cancellation of his visa would break the relationship of trust between them.

1. While his family may be disappointed with the cancellation of the visa and his inability to complete his studies, those matters arise not from the applicant’s academic performance but from his failure to maintain enrolment at level 9 of the AQF or higher.

2. The Tribunal notes that the applicant has completed a Master’s of Information Technology and he will not return to India empty-handed if the visa is cancelled. However, the Tribunal accepts that there will be some financial hardship caused to the applicant and his family if the visa is cancelled, especially as he only has 3 months left to complete the Diploma course, which he has undertaken since January 2019.

3. 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.

4. The Tribunal considers that the above matters add some weight towards the visa not being cancelled.

Circumstances in which ground of cancellation arose

1. 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.

2. The applicant gave evidence as to the circumstances that led to the cancellation of the visa, as set out above.

3. Ultimately, the responsibility regarding enrolment rests with the student and the Tribunal is not persuaded by his reasons for non-enrolment.

4. The applicant knew and was 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.

5. 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 an appropriate level for a period of 6 months and 27 days, which is a substantial period to be in breach of the visa.

6. 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 substantial period of time, and therefore in breach of condition 8202(2). The Tribunal does not accept that circumstances were beyond his control or that such circumstances are a reasonable explanation for not being enrolled at the relevant level of the AQF for such a lengthy period of time. The Tribunal gives this matter some weight towards the visa being cancelled.

Past and present behaviour of the visa holder towards the Department

1. According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating 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

1. 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

1. 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 further visa.

2. Further, if the Tribunal decides to affirm the decision to cancel the TU 573 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.

3. However, these consequences are the intended consequences of the legislation when a visa is cancelled on these grounds.

4. The applicant gave evidence that if the visa remained cancelled he would return to India and attempt to complete his studies, and therefore there is no indication that he would become unlawful or be subject to detention.

5. 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

1. 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 India 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

1. 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

1. 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 it 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.

2. The applicant gave evidence that he wanted to complete the Diploma of Project Management, which is a course at level 5 of the AQF. The applicant gave evidence that he wanted to complete the Master of Business Administration course, if his father’s financial position improved. The applicant’s evidence and the documentation including the Letter and the Submission, confirmed that his current position was poor. Based on the evidence presented, the Tribunal cannot be satisfied that the applicant would be able to gain enrolment in a master’s degree or higher.

3. Accordingly, the Tribunal gives this factor marginal weight towards the visa being cancelled.

Conclusion

1. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

DECISION

1. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Michael Biviano
Member

ATTACHMENT

M6igration Regulations 1994

…

Schedule 8

1. (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.