Law (Migration) - [2020] AATA 2537

Law (Migration) [2020] AATA 2537 (20 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr. Chun Ho Law
CASE NUMBER:  1932761
HOME AFFAIRS REFERENCE(S):          BCC2019/3262127
MEMBER:P. Adami
DATE:20 May 2020
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 20 May 2020 at 9:59am

CATCHWORDS
MIGRATION – cancellation – Higher Education Sector (subclass 573) visa – failure to maintain enrolment in registered course leading to qualification from Australian Qualifications Framework – changed from Bachelor degree to Certificate course – car accident and grandfather’s ill health – no compelling reasons – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 140
Migration Regulations 1994, Schedule 2, cl 500.611; Schedule 8, Condition 8202
CASES
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211; (2005) 143 FCR 204
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 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 applicant is a 24 year old Hong Kongese citizen, who initially arrived in Australia in 2010 to study the last term of Year 9 in secondary school. The applicant studied until Year 11 and then went to study at TAFE. The delegate in their 11 November 2019 decision states that the applicant last arrived in Australia on 17 February 2016 on a Higher Education Sector (subclass 573) visa for the purpose of studying a Diploma of Screen and Media, and a Bachelor of Graphic Design. The applicant completed the Diploma of Screen and Media, but did not complete the Bachelor of Graphic Design, ceasing study of this degree on 2 March 2017.
The applicant then enrolled in a Bachelor of Interior Design (Residential) at Torrens University which was to run from February 2017 to December 2019. On 23 November 2017, the applicant was granted a further Student Visa to study the Bachelor of Interior Design, which visa was to expire on 15 March 2020. However, on 15 January 2018, the applicant ceased enrolment in the Bachelor of Interior Design at Torrens University, and on 24 January 2018, the applicant enrolled in the Certificate III in Carpentry at TAFE Queensland. The applicant completed the Certificate III in Carpentry on 9 December 2019.
The applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s116(1)(b) of the Act. The delegate concluded that the applicant had failed to comply with the condition of the visa that required the applicant to maintain enrolment in a registered course of study, that once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level or higher, than the course for which the visa had been initially granted.
Upon concluding that the applicant had not maintained his enrolment at the required level (Level 7), the delegate considered all other relevant circumstances before concluding that the applicant’s visa ought to be cancelled. The delegate’s reasons are set out in their Record of Decision dated 11 November 2019, a copy of which was provided to the Tribunal on 24 October 2019 by the applicant when he filed his ‘Application for review’.
The issue in the present case is whether the ground for cancellation under s116(1)(b) of the Act is made out, that is, whether the applicant did not comply with a condition of his visa. If the Tribunal determines that the ground for cancellation is made out, the Tribunal must consider whether the applicant’s visa should be cancelled.
The applicant appeared before the Tribunal by telephone on 15 May 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance on an interpreter in the Mandarin and English languages.
The applicant was assisted in relation the review by their registered migration agent, Ms. Jun Zhang, although Ms. Zhang did not appear at the hearing.
The Tribunal is mindful that the applicant is not required to establish that the facts or grounds for cancellation do not exist, but the Tribunal must be satisfied that the facts or grounds for cancellation do exist. In Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 the Full Court of the Federal Court of Australia at [25] stated, “The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.” Further at [32], the Full Court stated, “A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The decision-maker must ultimately be satisfied that the ground for cancellation is established.”
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
Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The applicant's visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) ('the Regulations'), when the visa was granted.
Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa- see Schedule 2, cl 500.611(1)(a) of the Regulations. Condition 8202 requires that the visa holder maintain enrolment in a registered course of study that, once completed, would provide 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 had been granted.
The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a particular course is an indication of the relative complexity of the course, the extent of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest level.
The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason to change their course of study, they are specifically prohibited from 'downgrading' to a simpler course on the AQF hierarchy. In that regard, Condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia's student visa program is robust.
Has the Applicant Failed to Comply with Condition 8202(2)(b)?
The delegate in their decision notes that the applicant was granted a student visa in relation to a Bachelor of Interior Design at the Torrens University Australia Ltd. These studies were to commence on 20 February 2017 and to conclude on 8 December 2019. The Bachelor’s degree for which the visa was granted at AQF level 7.
The delegate states in their decision that the applicant’s enrolment in the Bachelor course ceased 15 January 2018, and the applicant obtained an enrolment in the Certificate III in Carpentry. The delegate concludes this on the basis of the information contained in the Department of Education and Training’s ‘Provider Registration and International Student Management System (‘PRISMS’).
The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) ('the ESOS Act'). It provides a means for education providers in Australia to comply with legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student's enrolment status and notify the Department of Education and Training of any issues arising from a student's general compliance with visa conditions once a visa has been issued.
The delegate found that the applicant had breached Condition 8202(2)(b) of his visa because he had downgraded his enrolment from an AQF Level 7 course to an AQF Level 3 course, 4 levels below which the visa had been granted.
On 15 October 2019, the Department of Home Affairs wrote to the applicant notifying him of its intention to consider cancelling his visa (‘the NOICC’). The NOICCC set out particulars of the matters that have been summarised above, and put the applicant on notice that the Department was concerned that he may be in breach of Condition 8202 of his visa. The applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.
The applicant did not respond to the NOICC. In a letter addressed to the Tribunal dated 6 May 2020 from the applicant he states, “I admitted that I didn’t apply for a new student visa after transferring to a lower course.” In a submission filed by Ms. Zhang with the Tribunal dated 8 May 2020, on behalf of the applicant, the applicant states, “Mr. Law also claims that he did transfer to a lower level of course in January 2018.” The applicant explains the circumstances of this change which is discussed below. At the hearing, the applicant also agreed that the ground for cancellation existed and stating “rules are rules.”
On the evidence before the Tribunal, the Tribunal concludes that the applicant breached Condition 8202(2)(b) of his visa.
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. However, the Tribunal is mindful that it should consider the circumstances of this case, including matters raised by the applicant in the course of the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The matters that ought to be considered are specifically listed in PAM3 as follows:
(a)the purpose of the Applicant's travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;
(b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant's control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);
(c)the extent of the Applicant's compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;
(d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;
(e)the Applicant's past and present behaviour towards the Department (e.g. whether they have been truthful and co-operative in their dealings with the Department);
(f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;
(g)whether there are mandatory legal consequences arising from a decision to cancel the visa;
(h)whether Australia has obligations under any relevant international agreements that would be breached as a result.
The Applicant’s Evidence
As noted above, the applicant did not respond to the NOICC, however, the applicant and his representative both filed submissions in regards to the circumstances that surrounded the breach of condition 8202, and the reasons for the change in enrolment. The applicant’s position in his 6 May 2020 personal submission is included below and may be summarised as follows:-
a)Many things happened to my family around the end of Year 2017, and I was deeply affected and felt very stressful. I was really in a bad mood and couldn’t concentrate well. One day, I had a car accident, and I was totally messed up by everything happened to me. While I was busy in dealing with things for car accident, I forgot the time to enrol for next semester and passed the enrolment deadline. As a matter of fact, I was not in a good condition due to many things happened to my family and also the car accident, and I was thinking to apply for deferring my course for one semester and gave myself some time to restart.
b)Unfortunately, it was too late and I passed the enrolment deadline and school sent me a notice for late enrolment and their intention to report me to Immigration Department.
c)I tried to apply for a deferral of my course, they rejected my request and they wouldn’t consider my explanation, even I can prove that something happened out of my control.
d)Under school’s advice and a local education agent’s help, I enrolled with QLD TAFE for a Certificate III course in Carpentry, which I believed helpful to my bachelor course of Interior Design. I wish I could go back to university to resume my bachelor course after completion of Certificate III course in Carpentry. I started my Certificate III course in February 2018 and successfully completed in December 2019 at Queensland TAFE.
e)On 11 November 2019, I received an email that my student visa was cancelled due to breach of visa condition 8202. More specifically, the letter said I didn’t apply for a new student visa after I shifted my enrolled course from a bachelor degree to Certificate III course in January 2018.
f)I admitted that I didn’t apply for a new student visa after transferring to a lower course. However, I strongly felt that it was not fair to me. I applied for transferring to a new course due to the reason that was out of control. Additionally, neither my previous education provider (Torrens University) nor new school told me to apply for a new student visa to meet their legal requirement. The only requirement they requested was a release letter from Torrens University so that I could transfer to a new school successfully.
g)After I enrolled with Queensland TAFE, the school never asked me to apply for a new student visa until I completed my study. As an overseas student, I relied heavily on my school’s advice and guidance, especially Queensland TAFE was a government school and I trusted my school should give me advice if it was necessary. I had no knowledge about visa condition and related law and regulation when transferring school and shifting courses.
h)Otherwise, I had no reason not to apply for a new student visa to meet my visa condition, and I also firmly believed that I had no difficulty of getting a new student visa granted as a Hong Kong Passport holder and a continuing genuine student in Australia.
i)Additionally, from the cancellation letter I noted that the Department sent me an email on 15 October 2019 for notice of intention to consider cancellation, which I totally missed. It was the reason why I didn’t response to the letter. I didn’t receive any other way of notification for such an important message, including phone call or letter. Consequently, missed an important opportunity to explain on my school transfer matter, and I believe it has great impact on visa officer’s conclusion on my student visa cancellation.
j)I have been a genuine student and I have been studying as a full time student in Australia for many years. During the past years, I had no any visa breaching history and have been in compliance with laws and regulations in Australia. The reason for my transferring to a new school was totally out of my control, and I strongly hope that I could complete my bachelor course in Interior Design and become a designer as my future career goal.
The applicant’s explanation regarding the circumstances and reasons for the breach is largely consistent with the submissions made to the Tribunal at the hearing and the contents of Ms. Zhang’s 8 May 2020 submission.
To summarise, the applicant did not see that he had received the NOICC via email; he did not respond, and he did not receive a phone call or mail from the Department regarding the NOICC; he sought to defer because he had been involved in a car accident which caused him to feel down and stressed during this period, but this request was rejected; he was accepted into the new course without having to do anything in relation to his visa; he received advice from an education consultant who told him that he did not need to do anything; he has been in compliance with all visa conditions and law in Australia; he breached condition 8202 as a result of factors outside his control; he was not advised either by his consultant or education provider that he needed to apply for a new visa to meet condition 8202. At the hearing the applicant told the Tribunal that he was an innocent student caught between his agent and the university.
The Purpose of the Visa Holder’s Travel and Study in Australia, whether the Visa Holder has a Compelling Need to Travel to or Remain in Australia
The applicant states in his personal submission that he has been a genuine student and has been studying in Australia as a full time student in Australia for many years. The applicant states that he transferred to a new school for reasons “totally outside” of his control, and he hopes “that I could complete my bachelor course in Interior Design and become a designer as my future career goal.”
The Tribunal accepts that the applicant returned to study in Australia as a full time student. The Tribunal also accepts that the applicant has a desire to complete a Bachelor of Interior Design course.
'Compelling' and 'Need' are words that ought to be given their ordinary meaning having regard to the purposes of the legislation. They are not defined in either the PAM3 or the Act.
In Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211; (2005) 143 FCR 204, Crennan J (then sitting as a judge on the Federal Court) considered the definition of the word ‘compelling’ in the context of the Migration Regulations 1994 (Cth). Her Honour concluded at [37], p213 that ‘compelling’, when considered in the legislative framework regarding the visa regime, “is wide and unqualified. “Compelling” in its wide, ordinary meaning means “forceful”.” Her Honour concluded that there was nothing in the relevant subclause which indicated that compelling should be construed narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing, or which indicate that compelling includes an involuntary element, involving circumstances beyond a person’s control or necessity (see [37], p213).
Although used in a different context to the visa regime, various courts have stated that “need” is a relative concept, it is different from ‘want’ and does not simply mean ‘demand’ or ‘desire’. Lord Neuberger of Abbotsbury in R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 42 at [54] stated, “”’Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but falls far short of ‘cannot survive without’.”- see Koellner v Spicer [2019] NSWSC 17571 at [123]-[126].

The Tribunal considers that the compelling need that is to be assessed in regard to PAM3 amounts to an assessment as to whether the applicant has a forceful reason to travel to or remain as a student in Australia, which is more than a want to study but less than a necessity to study in Australia.
At the hearing and in the submissions filed with the Tribunal, the applicant emphasised that his change in AQF Level was not intentional and that he wishes to return to study at the Bachelor level. The Tribunal considers on the evidence before it that the applicant has not adequately established a compelling need to remain in Australia. For example, the applicant may have demonstrated that a similar course is not available in Hong Kong.
The Tribunal gives this factor moderate weight in favour of cancelling the applicant’s visa.
Circumstances in which the Grounds for Cancellation Arose- whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing
The circumstances relating to the applicant breaching condition 8202(2)(b) are set out above. The applicant told the Tribunal that he ‘rear-ended’ a car after a motor vehicle collision which he caused in July/ August 2017 (Ms. Zhang’s submission states September, but nothing turns on the difference). The applicant stated that he was not injured, but as a result of the damage both cars were ‘written off’. The applicant was pursued by the insurer of the other vehicle and he had to pay $18,000 as a result. The applicant told the Tribunal that he had to pay his friend $5,000 for the damage caused to his friend’s car. The applicant stated that he was busy dealing with the accident.
The applicant also told the Tribunal that his maternal grandfather was seriously ill, being in and out of hospital, but the applicant stated that he was not sure of the details, and believed it was urinary tract related and it sounded like his grandfather had had enough. The applicant told the Tribunal that he tried to defer his studies; however his education provider would not consider the applicant’s reasons for the deferral sought. In his personal submission, the applicant states, “Unfortunately, it was too late and I passed the enrollment deadline and school sent me a notice for late enrolment and their intention to report me to Immigration Department.” [original]
The applicant filed with the Tribunal a copy of the 18 October 2017 email he sent to the Enrolments Team at Torrens University, in which he set out he had been involved in a car accident, and that he “had to deal with many things”. As stated to the Tribunal the applicant sought a deferral, in the email. The applicant also filed with the Tribunal a ‘Letter of Release’ dated 17 January 2018 addressed to him, in which the Campus Life Co-ordinator wrote, “I am writing to confirm that you have been released from Billy Blue College of Design without objection.” The letter includes the applicant’s details and the course is stated as the Bachelor of Interior Design (Residential) between 20 February 2017 and 8 December 2019. The letter also states, “We have informed DEEWR [Department of Education, Employment and Workplace Relations] and DIAC [Department of Immigration and Citizenship and now called the Department of Home Affairs] of the cessation of your studies via PRISMS. You should contact DIAC to confirm your visa status and DIAC will advise if a new visa is required. Failure to take this step may leave you without a valid visa.”
The Tribunal considers that it is clear that although the applicant had been involved in a car accident which resulted in extensive financial cost and accepting that his grandfather had some medical issues, the applicant was put on notice about his visa obligations. The Tribunal is not unsympathetic to the applicant that he was in a foreign country and had caused approximately $23,000 in damage as a result of the car accident. The Tribunal is also mindful that the applicant was distressed by his grandfather’s ill health.
The Tribunal notes that the applicant, as set out in paragraph 23(e)-(h) above, felt aggrieved that he was accepted without being alerted as to the actual need for a new visa, and that if necessary, he had no reason not to apply for a new visa.
The Tribunal notes that the car accident happened around July/August 2017 according to the applicant, this is around 4 months before the applicant obtained enrolment in the Certificate III in Carpentry. The Tribunal also notes that the January 2018 letter from the Campus Life Co-ordinator Ms. Chan, did advise the applicant that he should contact the Department to confirm his visa status and check whether a new visa was required. The applicant did not do so and as a result, due to this failure, he subsequently received the October 2019 NOICC. The Tribunal understands the way in which the applicant casts his submission in relation to this factor. Accounting for the effect of the car accident and his grandfather’s ill health, the applicant still did not check with the Department about his visa status, when it was he who was obliged to ensure that he was suitably holding the correct student visa.
The Tribunal places substantial weight on this factor in favour of cancelling the applicant’s visa.
Extent of Compliance with Visa Conditions
The Tribunal notes that the applicant has otherwise complied with his visa conditions, and only breached condition 8202(2)(b). The delegate concluded in their decision that the applicant had not been enrolled at the required AQF level for 21 months and the delegate considered the extent of non-compliance to be significant.
The Tribunal considers that although the breach of visa conditions is limited to only condition 8202(2)(b), the condition is intended to reinforce the intention of the student visa, so that holders are able to enter and remain in Australia for the purposes of study at the level for which the visa was granted.
Given the applicant’s enrolment in the Bachelor of Interior Design was cancelled in January 2018, and the NOICC was sent in October 2019, the Tribunal considers the applicant’s breach of the condition was significant. The Tribunal gives this factor moderate weight in favour of cancelling the applicant’s visa.
The Degree of Hardship that might be caused (financial, psychological, emotional or other hardship)
The applicant states in his submission that, “If my student visa is cancelled, I would face a difficult situation and hardship. First, I couldn’t go back to the university and resume my bachelor course and it means that I wasted my previous study time and my parents’ investment on me, and I also destroyed my career dream. Moreover, I’m also worried that if my student visa cancelation is uphold by you, I would face a departure reality in a near future. The recent outbreak of Convid-19 Pandemic makes it extremely difficult and dangerous for taking an airplane for travel back to Hong Kong.” [original] The applicant stated similar hardship at the hearing.
Ms. Zhang in her submission also includes a hardship that the applicant “would face the reality of leaving Australia without his study goal completed.”
The Tribunal accepts that the applicant and his family may suffer some hardship if the applicant’s visa remains cancelled. The applicant has completed a Diploma of Screen and Media and the Certificate III in Carpentry while studying in Australia, so has obtained qualifications that might help him in his future employment. The Tribunal is mindful that the applicant did not complete the 2 Bachelor level degrees he enrolled in. The Tribunal considers the hardships that are said to be suffered are ameliorated by the applicant’s failure to maintain suitable enrolment or to apply for the correct visa. The applicant did not protect his visa status as he was encouraged in the 17 January 2018 letter referred to above.
The Tribunal has no control in regards to the Department issuing a bridging visa to any applicant as a result of COVID-19, and the Tribunal notes generally the lack of overseas travel to and from Australia at this time. There is no evidence before the Tribunal that the applicant will probably be required to return to Hong Kong at this time of COVID-19.
The Tribunal gives some weight to this factor against cancelling the applicant’s visa.
Past and Present Behaviour of the Applicant towards the Department
The applicant states that he did not respond to the NOICC on the basis that he was not aware he had received it, and the Tribunal accepts this. The applicant told the Tribunal that he did not check his email, and that he was surprised to receive the NOICC, and that he did not have sufficient time to respond to it. The applicant was cooperative in his dealings with the Tribunal. No adverse information has been provided to the Tribunal that he has been uncooperative with the Department or departmental staff. The Tribunal gives minimal weight to this factor in favour not to cancel the applicant’s visa.
Whether there are Persons in Australia who’s Visas would, or may, be Cancelled Under s140
The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s140 of the Migration Act 1958. The Tribunal considers this factor is not relevant and therefore places no weight on this factor in the applicant’s favour not to cancel his visa.
Mandatory legal consequences arising from a decision to cancel the visa
The Tribunal notes that the delegate refers to the possibility that the applicant will become an unlawful non-citizen and may be liable to detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. The delegate also refers to s48 of the Migration Act which would cause the applicant to have limited options if applying for a further visa while in Australia. The delegate also refers to Public Interest Criterion 4013 which may prevent the applicant being granted particular temporary visas for a specific period from the date of cancellation.
The Tribunal considers that these consequences are intended possible outcomes as a result of a cancellation of an applicant’s Student Visa. Detention would arise only if the applicant were not to return to Hong Kong voluntarily in the time permitted to leave after an unfavourable decision. The Tribunal places little weight on this factor in the applicant’s favour not to cancel his visa.
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
There is no information before the Tribunal that this application raises any questions of Australia’s international obligations. Tribunal considers this factor is not relevant and therefore places no weight on this factor in the applicant’s favour not to cancel his visa.
Any Relevant Matters
The Tribunal does not consider that there are any other relevant matters to weigh.
The Tribunal has carefully considered the applicant’s personal circumstances and the circumstances of him breaching condition 8202(2)(b). The Tribunal considers that the factors against cancellation are outweighed by those factors in favour of cancellation. As such, the Tribunal concludes that the applicant’s visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
P. Adami

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.