LI (Migration)

LI (Migration) [2017] AATA 2607 (4 September 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Xuanchen LI
CASE NUMBER:  1612040
DIBP REFERENCE(S):  BCC2016/1885239
MEMBER:David McCulloch
DATE:4 September 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 04 September 2017 at 12:29pm

CATCHWORDS
Migration – Cancellation – Student visa – Subclass 573 (Higher Education Sector) – Breached visa conditions – Ceased to be enrolled in a registered course – Experienced hardship in Australia – Suffering from home sickness – Social isolation
LEGISLATION
Migration Act 1958 ss 116(1), 116(1)(b), 140
Migration Regulations 1994 Schedule 2 sub-cls 573.231, 573.223(1A), Schedule 8 Conditions 8202, 8202(2), 8202(3)(a)- (b), 8516
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 26 July 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant is a national of China born on 27 September 1994. The visa that has been cancelled was granted on 31 March 2014 for a stay period until 15 March 2018. That visa was subject to condition 8202.
On 5 July 2016 and 14 July 2016 the applicant was issued with Notices of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of his visa, as he ceased to be enrolled in a registered course. The first NOICC refers to the date of 8 August 2015 when the applicant ceased to be enrolled in a registered course. The second NOICC refers to a date of 8 April 2015. The applicant provided a written response to the NOICC. On 26 July 2016, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of his visa. The applicant seeks review of the delegate’s decision.
The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 20 July 2017 to give evidence and present arguments. Communication was facilitated with the use of an interpreter in the Mandarin language.
At the commencement of the hearing the applicant indicated that he had not been able to contact his migration agent, who had not returned his calls. The Tribunal indicated that its systems did not indicate that the applicant was represented by a registered migration agent. Given that the applicant thought that he was represented, the Tribunal indicated that it would provide time following the hearing for the applicant to seek to re-engage with his migration agent or to seek the assistance of another migration agent to facilitate submissions following the hearing, based on the recording of the hearing which the applicant would be able to obtain. The Tribunal provided three weeks following the hearing for additional submissions and supporting documents. At the expiration of this time period the applicant asked for more time to provide a Confirmation of Enrolment in a higher education sector course. No other submissions were provided. The Tribunal provided a further 14 days. At the expiration of this period of the applicant asked for further time. As discussed later in this decision, the Tribunal has declined this request and proceeded to make this decision.
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:
- be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)
- has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
- has been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.
The Provider Registration International Student Management System (PRISMS) indicates that the applicant ceased to be enrolled in a registered course on 8 April 2015 when his enrolment in a Bachelor of Management was cancelled due to non-commencement of studies.
There is nothing before the Tribunal to suggest that the applicant was a holder of a subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.
In the hearing, the applicant acknowledged that he ceased to be enrolled in a registered course on 8 April 2015 and had not been enrolled in a registered course since.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).
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 to exercise its discretion to cancel the visa.
There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose - whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (ie. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulment obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non refoulement obligations; and any other relevant matters.
The applicant provided the following written response to the NOICC (not corrected for spelling or grammar):
My name is Xuanchen Li. I was notified by the DIBP on 5 July 2016 regarding its intention to consider cancellation of my student visa (subclass 573). I am writing this statement to clarify relevant issues with regard to the ground for cancellation identified in this notification as well as explanation of reasons why my student visa shall not be cancelled.
According to the intention notice from the DIBP, I have not been enrolled in a registered course of study since 8 August 2015 as a student visa holder and therefore failed to meet the requirements of student visa condition 8202(2)(a) according to the PRISMS. The actual fact is that I have been suffering serious long-term psychological and emotional problems since last year. This terrible situation was due to great language barriers I have encountered, huge performance pressure from my family members and a strong sense of isolation and homesickness I had suffered over that tough period. Despite all these challenges beyond my reasonable control, I have consistently maintained a good character and behaviors in Australia. I also hold a positive attitude and motivation towards study over this tough period. I have been continuously seeking assistance in great efforts to overcome these challenges because I hope that I could resume my study and continue to achieve study progress in Australia as possible as I can.
I was granted my student visa (subclass 573) on 31 March 2014. I admit that I was a bit optimistic about my overseas study when I arrived on Australia.
When I studied the language course (General English) at Melbourne Institute of Technology (MIT), I began to feel more and more pressure on me due to huge language barriers and cultural differences I have encountered. I am an introverted person. During that period, I tried to talk with people around me since I hoped that someone could help me to recover from the bad condition. However, I felt so upset and lost confidence about continuing study in this institution during that time because I found it difficult to communicate with others and catch up with the study progress due to all these challenges. During that hard time, I was feeling extremely desperate, lonely and hopeless.
Because of these issues, I transferred to Warwick Institute of Australia and received an offer on 12 January 2015 from the Institute to study Diploma of Business. In fact, I was trying very hard to improve my language and tried my best to catch up with the study progress even though I was suffering from psychological illness, for example serious insomnia, during that period. Even so, the significant language barrier and a feeling of isolation have resulted in a strong sense of fear growing within me over a quite long period. At that time, I believed that I was suffering from Autism Spectrum Disorder because I have been so scared of getting with people around me every day. I am very introspective and always thinking about things during those nights. Actually, this issue had adverse implications when I was in China, but it has been becoming serious since I arrived in Australia and encountered all these challenges. Due to my long-term sense of isolation, I have missed a lot of opportunities to make any friends and to seek any helpful assistance. I felt so socially isolated because I was not living in China where I would receive support from my family members and other close friends emotionally. I felt extremely bad and upset during that period.
In actual fact, I have been suffering anxiety and depression for a quite long time. Such a bad situation continued to impact me from August 2015, which is the principal reason why I was unable to be enrolled in a registered course of study since that time as shown on the DIBP's record. I always wake up with an anxiety attack at night and this symptom was getting serious during that period. I feel that my nervous system was so overwhelmed when I went to sleep every night. Based on my symptoms and bad feelings I have suffered so far, I believe that I have been suffering serious psychological problems that have dramatically affected my ability to continue my study in Australia.
In fact, having realized the serious consequence of my bad feelings and symptoms, I made an appointment with a psychologist (Mr Edwin Kleynhans) in Sydney on 11th July 2016. During the psychological consultation and assessment time, I told the psychologist what I have experienced and suffered over that period. He made some comments on the psychological report based on my situation and also suggested me to distract my attention on exams and do something else to relieve pressure if I feel terribly unwell. He also encouraged me to become more optimistic and confident for my study and life in Australia, I keep practicing to overcome these psychological difficulties and try my best to deal with all the challenges. A Confidential psychological report issued by my psychologist can also be submitted together with this statement as a supporting evidence for my claims.
Great pressure from my family members also contributed to the serious emotional and psychological issues I have suffered during that time. I have grown up in an environment of care and love from my parents in China. My parents always support me emotionally and financially for my study and life in Australia. Therefore, when I failed to successfully continue my study and was struggling with those life challenges in Australia, I began to feel so guilty to face my parents who have spent a huge sum of money and have extremely high expectations on my study overseas. My parents are always critical of what I am doing and never satisfied with my performance. They have been performed so disappointed to me since they have been aware of my situation in Australia. All depression and pressure were derived from a strong fear that my parents would disapprove of me because of my study problems in Australia. At that time, I felt so bad and depressed when they told me that they began to regret about the decision of sending me overseas for study.
I have been consistently seeking assistance to deal with all these challenges mentioned above so that I could resume my study at school. Also, I firmly believe that I will recover from the bad situation affecting on my study and life in Australia.
Thank you very much for your patience to go through this statement. I really appreciate your consideration if you could take into account the above explanation of circumstances when considering cancellation of my student visa (subclass 573).
The applicant provided a report from Edwin Kleynhans, Psychologist dated 11 July 2016. It is based on a consultation that took place on 11 July 2016. The report repeats claims of the applicant’s gap in his studies due to personal challenges, adjustment problems in Australia, not having the support of friends, and family pressures. These issues caused a lack of motivation for the applicant to enrol in any course from April 2015. The applicant was depressed and lonely.
The report indicates the applicant advising that he had adjustment problems in China in his formative years. It reports that the applicant had not consulted a psychologist prior to the current consultation or received any psychiatric medication for depression or anxiety.
The report concludes that the applicant is vulnerable to stress with its genesis in his formative years. Stressors included family dynamics, personality adjustment problems and social fears, adjustment problems at college and challenges with English. The applicant’s depression and anxiety are not in remission. He is uncertain as to when he will be able to resume his tertiary education. Diagnoses are made of depression and anxiety. The recommendation is made that applicant consult a psychologist who speaks Mandarin. The applicant’s prognosis is good given that he has accepted counselling and drug therapy as a treatment option.
In the hearing the Tribunal explored with the applicant his study history in Australia. The applicant confirmed that he studied an English course from May 2014 until September 2014 and another English course from September 2014 until March 2015. PRISMS indicates that the applicant finished both courses. The applicant commenced a Diploma of Business on 12 January 2015. In the hearing, the applicant indicated that he had difficulties with this course. He said that he was not in the mood to study and was not in a good state. He said that there was pressure from his parents. The applicant also referred to difficulties due to a relationship breakup. The applicant said that he studied this course for two to three months and completed no units. Information that the Tribunal has obtained from the education provider confirms that the applicant started this course but completed no units.
In the hearing the applicant indicated that he has undertaken no study following dropping out of the Diploma of Business.
The Tribunal noted to the applicant that he would have been able to meet his visa obligations but address his mental health issues by seeking a deferral from relevant courses on medical grounds. The applicant indicated that he had no awareness of this option; it would not be an option in China. The Tribunal put to the applicant that this might suggest limited regard to his visa obligations. It might be expected that if the applicant was having significant difficulties with his courses due to emotional difficulties he would consult his education provider to seek to explore options.
The Tribunal noted to the applicant that the consultation with the psychologist occurred only after receipt of the NOICC. The applicant indicated that treatment from psychologists is not widely accepted in Chinese culture and that he only saw the psychologist after advice from his migration agent. The Tribunal noted to the applicant that the psychologist recommended that the applicant continue to see a psychologist who speaks Mandarin. This was in the context of the report indicating that the applicant’s depression and anxiety were not in remission. The applicant indicated that he did not subsequently see a Mandarin speaking psychologist. He said that psychologists just say anything. The applicant indicated that he went to a health centre and was prescribed medication for depression. He said that he stopped taking this after about three weeks as he thought the medication might adversely affect him. The applicant indicated that, at that point, he thought that he was okay. The applicant also indicated in the hearing that the extent of his anxiety and depression might not have been as great as first thought.
The Tribunal asked the applicant why, then, he did not enrol and study from that point, noting that there was no evidence of a restriction on him studying at that point in time. The applicant indicated that he did not want to enrol and study with uncertainty about his visa status. The Tribunal put to the applicant that it considered that concern might have been outweighed if there was a genuine desire to study in Australia, including to demonstrate his commitment to the Tribunal. The applicant indicated that his desire to study is demonstrated by the fact that he is seeking review by the Tribunal of the delegate’s decision.
The Tribunal asked the applicant about his study intentions. The applicant indicates that he needs to study English as a first step and then would progress to a Bachelor degree in business.
The Tribunal discussed with the applicant in hearing a potential breach of condition 8516 which attached to his visa.
The condition 8516 states that: ‘The holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa’. The criteria for the grant of the Student visa includes, amongst other criteria, subclause 573.231 and 573.223(1A).
Essentially, subclause 573.231 provides that, unless a person is an eligible higher degree student as set out in 573.223(1A), that person must be enrolled or the subject of a current offer of enrolment in a course of study that is the principal course of the type specified in an instrument for the subclass 573 visa.
The relevant instrument sets out a list of relevant courses in the higher education sector.
In the hearing, the applicant acknowledged that he was aware of his obligation under a subclass 573 Student visa to be enrolled in a higher education sector course.
The applicant acknowledged that, as of 8 April 2015, he had ceased to be enrolled in such a course. The applicant had acknowledged that he had not subsequently enrolled in any registered course which means that he had also not enrolled in any higher education sector course.

The Tribunal noted to the applicant in the hearing that it was unlikely to exercise its discretion to reinstate the visa unless the applicant enrolled in a higher education sector course as required by condition 8516. Otherwise, if the visa were to be reinstated, the applicant would continue to be in breach of condition 8516. The Tribunal noted to the applicant there were nevertheless remaining concerns, which it articulated, which may create difficulties for the Tribunal exercising its discretion in the applicant’s favour, even if he did provide an enrolment in a higher education sector course.
At the expiration of the three week period the Tribunal gave to the applicant to provide further submissions and supporting documents, the applicant wrote to the Tribunal asking for more time. He indicated that he has applied to a school but has not yet received a reply. The Tribunal provided the applicant an additional 14 days. The applicant requested further time at the expiration of this period. He indicated that his intermediary has indicated that obtaining the Confirmation of Enrolment takes some time and there are issues to do with the applicant’s Bridging visa. He indicated the issue is very complex and he is learning to communicate and he really wants to go to school.
The Tribunal assesses this evidence.
The applicant has been in breach of both conditions 8202 and 8516 from 8 April 2015 until the visa was cancelled on 26 July 2016, a period of more than 15 months. These are breaches for a significant period.
The Tribunal assesses whether there are extenuating circumstances beyond the applicant’s control for the breaches. The Tribunal accepts that the applicant had significant difficulties in integrating into study life in Australia, a foreign country with a different language. The Tribunal accepts that the applicant felt lonely and isolated under pressure from his parents and had relationship issues. The Tribunal is prepared to accept that these matters created some degree of depression and anxiety for the applicant.
However, the Tribunal is not satisfied that the depression and anxiety has been as significant as claimed by the applicant. Firstly, the Tribunal has concerns at the applicant’s failure to seek any medical or mental health treatment for his conditions until more than a year and a half after they occurred, and only after receipt of the NOICC, notwithstanding any cultural reticence. If the condition was so debilitating for such an extend period, the Tribunal considers that the applicant would likely have sought professional help.
The diagnosis of the psychologist in July 2016 that the applicant had had long-standing depression and anxiety which was not in remission, seemed at odds with the fact that, on the applicant’s evidence in the hearing, he had stopped taking antidepressants within 3 to 4 weeks, soon after this consultation, and that he felt much better. The applicant also indicated in the hearing that the depression and anxiety may not have been as bad as thought which is inconsistent with the response to the NOICC in which the applicant claims that he was suffering from serious psychological conditions. The Tribunal also notes that the applicant failed to act on the advice of the psychologist to see a Mandarin speaking psychologist. This is at odds with the indication in the psychologist’s report that the applicant accepted the need for consultation with a Mandarin speaking psychologist.
Whilst the Tribunal accepts the diagnosis of the psychologist in July 2016 that the applicant had been, and was, suffering depression and anxiety, for the reasons given the Tribunal is not satisfied that it was as severe as claimed by the applicant in the response to the NOICC.
If the Tribunal is wrong and if the psychological conditions of the applicant were as serious and long-standing as claimed, the failure by the applicant to seek ongoing treatment as recommended by the psychologist, who he saw on one occasion, and not to continue with medication, could suggest that the conditions suffered by the applicant remain. That might be considered consistent with the fact that the applicant has not enrolled or studied since.
In any event, the Tribunal considers that the applicant ought to have made a much greater effort to explore options to treat his depression and anxiety yet maintain his visa requirement to be enrolled in a registered course, and to be enrolled in a higher education sector course. This could have been done by the applicant seeking a deferral on medical grounds of relevant courses. If the applicant did not know, as he claims, of such an option, the Tribunal considers that he should have made the effort to find out and to speak to his education providers about the difficulties that he was facing. The Tribunal considers that the applicant must have had an awareness that not being enrolled in a registered course, and a higher education sector course, for many months created a risk in terms of his visa obligations. The applicant did not take any significant steps to explore options in relation to the potential breaches until after the receipt of the NOICC.
In all of these circumstances, the Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify the breach of both conditions 8202 and 8516 for periods of more than 15 months.
It is clear that, since being in Australia since mid-2014, the purpose of the applicant being in Australia has been to study, certainly up until the cancellation of the visa. The applicant indicated in the hearing that it is his ongoing wish to study. The applicant being on a subclass 573 Student visa requires him to be enrolled in a higher education sector course, and thus to, at least, be on the pathway to such a course.
As it is, the applicant has completed two English courses only. He has struggled with a course at the Diploma level. The applicant has indicated that he needs to progress with his English before he can proceed, although he wishes then to progress to a Bachelor course in business. Whilst the Tribunal is prepared to accept that the applicant has such a goal, at the time of the hearing the applicant was not enrolled in higher education sector course and therefore, if the visa were reinstated the applicant would continue to be in breach of condition 8516 (as well as condition 8202).
In the hearing, the applicant was vague and unclear as to a higher education sector course that he intends to enrol in. The applicant indicated no specific course or education provider. The Tribunal had concerns as to the applicant’s eligibility to enrol in a higher education sector course given his limited study progression in Australia. Further, as indicated, if the Tribunal were to accept that the applicant had serious psychological conditions the failure by the applicant to seek ongoing treatment might cast doubt on the applicant’s ability to study.
The applicant was not able to provide the Tribunal in the five week period following the hearing a Confirmation of Enrolment in the higher education sector course. After the Tribunal agreeing to an extension to provide this information the applicant requested further time at the expiration of this further period. He indicated that his intermediary has indicated that obtaining the Confirmation of Enrolment takes some time and there are issues to do with the applicant’s Bridging visa. He indicated the issue is very complex and he is learning to communicate and he really wants to go to school.
The Tribunal has determined not to give the applicant further time. Whilst the Tribunal indicated to the applicant in the hearing that it would likely be a precondition to exercising its discretion in his favour that he enrolled in a higher education sector course, there were other discretionary concerns that may create difficulties for the applicant in any event.
Whilst the Tribunal has doubts as to the applicant’s eligibility to be accepted into a higher education sector course given his study history in Australia, even if the applicant were to currently enrol in such a course it would not result in the Tribunal exercising its discretion in the applicant’s favour given other discretionary issues.
The Tribunal has concerns with the failure by the applicant to enrol in any course, including a higher education sector course, after he claims he felt well enough to continue to study sometime around September 2016. Whilst the Tribunal acknowledges that uncertainty about the applicant’s visa status might result in some reticence to progress with studies, the Tribunal considers that, if the applicant were genuinely committed to studying in Australia, he would enrol and study despite some uncertainty, because that would be a key factor to demonstrate to the Tribunal a commitment and ability to undertake ongoing study.
The failure by the applicant to enrol and study following him claiming to feel well enough to do so in around September 2016, notwithstanding not holding a Student visa at that point in time, is adverse to the applicant in the exercise of the Tribunal’s discretion. Alternatively, if the applicant’s condition was severe as previously claimed, his failure to continue treatment as recommended could lead to conclude that the applicant’s conditions have not resolved, which could be a reason for his failure to subsequently enrol or study.
In terms of hardship if the visa remains cancel, or compelling reasons to remain in Australia, the applicant indicated that the key issue is his desire to continue studying. He indicated that he will feel guilty in relation to his family who he will let down. The Tribunal does accept that the applicant has some desire to continue to study, although it does not think that he has sufficiently manifest this commitment. The Tribunal also has concerns as to the applicant’s ability to study at the higher education level. The Tribunal nevertheless acknowledges some hardship to the applicant due to an inability to continue to study in Australia.
The continued cancellation of the visa would create restrictions on the ability of the applicant to apply for various visa subclasses onshore and this would be hardship to the applicant.
There is no evidence that the applicant has acted in an adverse way towards the Department. There is no evidence that there are third parties whose visas would be cancelled consequential upon the cancellation of the applicant’s visa.
In terms of mandatory legal consequences if the visa remains cancelled, in the absence of evidence to the contrary, the Tribunal is not satisfied it likely that the applicant would be subject to mandatory detention for being an unlawful noncitizen given his ability to apply for a Bridging visa to legitimise his visa status whilst he makes arrangements to leave the country or pursues review or appeal processes.
The applicant indicated in the hearing his ultimate intention to return to China.
The Tribunal asked the applicant whether he feared persecution of significant harm on return to his home country. It was difficult getting a response from the applicant who seemed to have difficulty understanding the question. Ultimately the applicant seemed to indicate that he was not 100 per cent sure. Given the applicant’s initial evidence that his ultimate intention was to return to China, and no specific evidence of any real risk of persecution of significant harm on return to China, the Tribunal is not satisfied that Australia’s non-refoulement obligations are enlivened.
There is no evidence that the interests of children would be affected by the continued cancellation of the visa. There is no evidence which make relevant any other factors.
In summary, the applicant has been in breach of both conditions 8202 and 8516 for periods of 15 months. These are significant breaches. The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that justify the breaches. The applicant has made extremely limited progress in his studies during his time in Australia. The failure by the applicant to enrol and study when he says he felt well following the cancellation of the visa is undermining of the applicant having a committed ongoing intention to study in Australia. Alternatively, the failure by the applicant to seek treatment for what, in one version of his claims, were his serious mental health condition could suggest that those conditions continue such as to explain the applicant’s failure to enrol or study more recently, and indicate that he may not have the capacity to study in the future. Cumulatively these matters are significantly adverse to the applicant.
The Tribunal acknowledges some hardship to the applicant if the visa remains cancelled in terms of an inability to continue studies and restrictions on applying for various visa subclasses onshore. The Tribunal is not satisfied that these matters or any other discretionary matters overcome the discretionary factors adverse to the applicant.
Even if the applicant were to provide today a Confirmation of Enrolment in a higher education sector course that would not overcome the cumulative impact of the matters adverse to the applicant in the exercise of the Tribunal’s discretion.
Balancing discretionary factors, the Tribunal is of the view that it should exercise its discretion to cancel the visa.
The Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
David McCulloch
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1) The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).
(2)A holder meets the requirements of this subclause if:
(a)the holder is enrolled in a registered course; or
(b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.
(3)A holder meets the requirements of this subclause if neither of the following applies:
(a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;
(b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:
(i)section 19 of the Education Services for Overseas Students Act 2000; and
(ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007
(4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.

[2017] AATA 2607

4 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice