Liu (Migration)

[2021] AATA 542

Liu (Migration) [2021] AATA 542 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaotong Liu

CASE NUMBER:  1908978

HOME AFFAIRS REFERENCE:              BCC2019/869154

MEMBER:L. Symons

DATE:29 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 29 January 2021 at 6:23pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – continue satisfaction of primary criteria – Legislative Instrument 14/015 – maintain enrolment in the higher education sector – consideration of discretion – health issues – necessary English language skills – capacity to study in Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116

Migration Regulations 1994 (Cth), Schedule 2, cls 573.223, 573.231; Schedule 8, Condition 8516

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 2 April 2019 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8516 of her Student visa. 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 Tribunal wrote to the applicant on 2 September 2020 and invited her to attend a hearing on 27 October 2020 at 9.00am. The Tribunal did not receive a Response to Hearing Invitation as requested. On 26 October 2020, the Tribunal received a letter from her then migration agent advising that she had been unable to contact the applicant by telephone or email to obtain instructions for the hearing and indicating that she wished to withdraw from her representation of the applicant before the Tribunal.

4. On 26 October 2020, the Tribunal wrote to the applicant again and requested that she contact the Tribunal or her migration agent urgently but did not receive a response.

5. The applicant did not appear before the Tribunal at 9.00am on 27 October 2020 for the hearing. The Tribunal was not contacted by her or anyone else on her behalf to explain her nonappearance or to seek a postponement of the hearing. On 27 October 2020 at 12.01pm, the Tribunal dismissed her application for review.

6. On 9 November 2020, the Tribunal received a letter by email from a different migration agent enclosing a statement from the applicant. In her statement, the applicant requested that her application for review be re-instated on the basis that she was overseas and her previous migration agent had not properly notified her of the hearing. The Tribunal granted her request for reinstatement of her application for review.

7. On 4 December 2020, the Tribunal wrote to the applicant and invited her to attend a hearing by telephone on 7 January 2021 at 9.00am. On 4 December 2020, the Tribunal received a Response to Hearing Invitation from her new migration agent.

8. The applicant appeared before the Tribunal by telephone on 7 January 2021 to give evidence and present arguments.

9. The applicant was represented in relation to the review by her registered migration agent, Mr Xuanye Ye, who attended the hearing.

10. 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 AND FINDINGS

11. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(b). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

12. A visa may be cancelled under s.116(1)(b) if the Minister is satisfied that the holder did not comply with a condition of his or her visa. In this instance, condition 8516 attached to the applicant’s subclass 573 Higher Education Sector visa. This condition requires that the visa 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. Relevantly, cl.573.231 or 573.223(1A) require enrolment in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.

13. In this case, the applicant was granted a Student (Temporary) (class TU) Higher Education Sector (Subclass 573) visa on 11 April 2016 as she satisfied the primary criteria for this visa. On 14 March 2019, the delegate sent her a Notice of Intention to Consider Cancellation (NOITCC) of her Student visa on the basis that she had not complied with condition 8516 of her Student visa.  She was given an opportunity to comment on the ground for cancellation identified in the NOITCC and give reasons why her Student visa should not be cancelled.

14. On 20 March 2019, the applicant responded to the Department of Home Affairs (the Department) and stated that she completed High School in June 2015 and wanted to come to Australia for further studies. She was granted a (Student) visa in 2016 and was enrolled at the University of Technology, Sydney (UTS) in a programme that consisted of an academic English course, a Diploma and a Bachelor degree. She completed the academic English level 3 course but failed Part B of the academic English level 4 course. The main reason was because she had recently arrived in Australia and the study method and the living environment was not “totally accepted”.

15. In her response to the NOITCC, the applicant stated that all her friends seemed smart and were able to understand what the English teacher taught them but she struggled. She could not get satisfactory results no matter how hard she tried. She was under a lot of pressure both physically and emotionally during her English language studies as she kept repeating Part B. She did not consult a Psychologist because in her country seeing a Psychologist gives people the impression that she suffered from a mental illness. She contacted her mother “multiple times” and was told to cease her studies and return home. She wanted to continue her studies in Australia and return home with a Bachelor degree as she did not want to break her word to her grandparents and lose face in front of them.

16. In her response to the NOITCC, the applicant stated that she thought that a package offered by the Wentworth Institute was more suitable to her needs. This package consisted of a Diploma of Leadership and Management followed by a Bachelor of Business. After consultation with her parents she decided to enrol in this package commencing the Diploma in Leadership and Management in January 2018 and the Bachelor degree in July 2019. She did not realise that she needed to change her Student visa.

17. The applicant provided the Department with an Offer Letter dated 22 November 2017 from the Wentworth Institute in relation to a Diploma of Business commencing on 5 March 2018 and concluding on 16 November 2018 and a Bachelor of Business commencing on 11 November 2018 and concluding on 20 November 2020 and an Offer Letter dated 19 March 2019 from the Wentworth Institute in relation to a Bachelor of Business degree commencing on 22 July 2019 and concluding on 5 November 2021.

18. On 2 April 2019, the Department cancelled the applicant’s subclass 573 Student visa.

19. The applicant filed with the Tribunal a copy of the Department’s Decision Record dated 2 April 2019 and a copy of the bio data page of her Chinese passport issued on 17 May 2017.

20. During the hearing, the applicant gave evidence that she came to Australia on 11 April 2016 on a subclass 573 Student visa. When asked that conditions were attached to that Student visa, she responded that she had to complete a language course, Diploma and then attend university. When asked if there were any other conditions attached to her Student visa, she responded that she did not think so. She stated that the only course she has completed in Australia is an (English) language course.

21. The Tribunal asked the applicant whether she agreed or disagreed with the Department’s findings that she was granted a subclass 573 Student visa on 11 April 2016 to study a higher education course, being a Bachelor’s degree, and that she had not been enrolled in a Bachelor’s degree or Master’s degree since 8 November 2017. She responded that she disagreed. When asked to explain why she disagreed, she responded that when she transferred (to a different education provider) her agent gave me a new COE but did not tell her that she had to “transfer the visa”. Because they were all Diploma courses she undertook, there was no need to “transfer the visa”.

22. The Tribunal discussed with the applicant the courses she was enrolled in in Australia. Her responses were confused and confusing. She did not appear to understand the difference between an Offer Letter and a Confirmation of Enrolment (COE) and was not sure about what course/s she enrolled in and the dates of those courses. She then stated that she was issued with a COE by the Wentworth Institute to study a Diploma of Management between 14 January 2019 and 7 July 2019. She gave the COE to her first migration agent. The Tribunal pointed out to her that she was granted a subclass 573 Student visa to undertake higher education studies. She responded that the problem was that she did not get an offer from a university.  

23. The Tribunal asked the applicant whether she understood that condition 8516 of her subclass 573 Student visa required her to continue to satisfy the primary criteria for the subclass 573 Student visa and if she failed to do so she would breach that condition. She responded that she does not think she breached a condition of her Student visa. She subsequently stated that she was not aware that she had breached a condition of her Student visa until she received a letter from the Department.

24. The records of the Department of Education indicate that the applicant enrolled in a Diploma of Business on four occasions and on each occasion her COE was cancelled. She was enrolled in a Bachelor of Business from 5 March 2018 to 31 December 2019. Her enrolment in that course was cancelled on 8 November 2017 for non-commencement of studies. She then enrolled in a Diploma of Leadership and Management in 2018 and again in 2019 which was subsequently cancelled. She has enrolled in seven academic English courses and has completed some of them.

25. The Tribunal put this information to the applicant, pursuant to s.359AA of the Act, and noted that it may lead the Tribunal to the conclusion that she had not complied with condition 8516 of her Student visa, had a poor record as a student in Australia, had not fulfilled the purpose for which her Student visa was granted to her and that it should be cancelled. She declined to respond and inquired whether there would be a 3-year exclusion period. The Tribunal suggested that she speak to her migration agent after the hearing and obtain immigration advice from her migration agent.

26. The applicant has not provided the Tribunal with any documentary evidence that contradicts the evidence from the Department of Education or to support her evidence that she does not think she breached condition 8516 of her Student visa. The Tribunal has not received any written submissions from her former or current migration agents.

27. Having considered all the evidence, the Tribunal finds that the applicant was granted a subclass 573 Student visa on 11 April 2016 which was subject to a number of conditions including condition 8516. The Tribunal finds that she was granted this visa for the purpose of studying a Bachelor of Business degree in Australia and that this was her principal course of study. The Tribunal finds that she was enrolled in a package of courses which were an Academic English course from 21 March 2016 to 10 February 2017, a Diploma of Business from 14 March 2017 to 19 January 2018 and a Bachelor of Business degree from 5 March 2018 to 31 December 2019. The Tribunal finds that she enrolled in the Academic English course and the Diploma of Business for the purpose of studying her principal course of study being the Bachelor of Business degree.

28. The Tribunal finds that the applicant’s enrolment in the Diploma of Business and the Bachelor of Business degree was cancelled on 8 November 2017 for non-commencement of studies. The Tribunal accepts that she did not commence her studies in the Diploma of Business leading to the Bachelor of Business degree because she was unable to pass Part B of Level 4 of the Academic English course. The Tribunal finds that she enrolled in a number of Academic English courses and Diploma courses but did not enrol in a Bachelor’s degree or a Master’s degree after her enrolment in the Bachelor of Business degree was cancelled on 8 November 2017.

29. The Tribunal finds that the applicant obtained an Offer Letter dated 22 November 2017 from the Wentworth Institute in relation to a Diploma of Business commencing on 5 March 2018 and concluding on 16 November 2018 and a Bachelor of Business commencing on 11 November 2018 and concluding on 20 November 2020 and an Offer Letter dated 19 March 2019 from the Wentworth Institute in relation to a Bachelor of Business degree commencing on 22 July 2019 and concluding on 5 November 2021.

30. There is no evidence before the Tribunal that the applicant is or was, at the time of application, enrolled in a principal course of study for the award of an Advanced Diploma in the vocational education and training sector. She is therefore not an ‘eligible higher degree student’ for the purpose of cl.573.223(1A) and this subclause does not apply to her. (See Annexure A). As subclause cl.573.223(1A) does not apply to her, she must satisfy cl.573.231 which provides that she must be enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course and the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument made under r.1.40A and in force at the time the application was made.

31. The Legislative Instrument made under r.1.40A and in force at the time the applicant applied for the Subclass 573 Student visa on 8 March 2016 was Legislative Instrument 14/015. It specifies the types of courses for Student visas. The courses listed for Subclass 573 Student visas includes Diploma (Higher Education) and Bachelor degree. It is not apparent on the evidence before the Tribunal whether the subsequent Diplomas that the applicant enrolled in were Diplomas (Higher Education).

32. In any event, the evidence before the Tribunal indicates that after the applicant’s enrolment in the Diploma of Business and the Bachelor of Business were cancelled on 8 November 2017 she was not enrolled in or the subject of a current offer of enrolment in a course of study that is a principal course until she obtained an offer of enrolment on 22 November 2017 from the Wentworth Institute in relation to a Diploma of Business commencing on 5 March 2018 and concluding on 16 November 2018 and a Bachelor of Business degree commencing on 11 November 2018 and concluding on 20 November 2020 and a Bachelor of Business degree commencing on 22 July 2019 and concluding on 5 November 2021 and the Tribunal finds accordingly.

33. Therefore, the Tribunal finds that between 8 November 2017 and 22 November 2017 the applicant did not satisfy the requirements of cl.573.231. As she did not continue to be a person who would satisfy the primary criteria for the grant of the Subclass 573 Student visa, she breached condition 8516 of her Student visa issued on 11 April 2016. Accordingly, the Tribunal finds that the applicant breached condition 8516 of her Subclass 573 Student visa.

    Consideration of the discretion to cancel the visa

34. Having found that the applicant has not complied with a condition of her Student 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’.

    Purpose of the applicant’s travel to and stay in Australia. Did the applicant have a compelling      need to travel to or remain in Australia?

35. The evidence before the Tribunal is that the applicant first arrived in Australia on 23 April 2016. She last departed Australia on 10 June 2019 and has not returned since then. 

36. The applicant gave evidence that the purpose for which she travelled to Australia was to study and obtain a Certificate or Diploma. When asked why she had not completed any studies in Australia other than an English course/s, she responded that her epilepsy made her unable to study and caused the failure of her studies. She stated that after the Department cancelled her Student visa, she could not continue her studies in Australia.

37. The Tribunal asked the applicant why she did not return to her family in China if she came here to study, was not studying and was having problems with her health. She responded that she could not accept her illness and wanted to escape from this issue. She changed to a different education provider in the hope of finishing her studies as the class sizes were smaller and, if she could not attend class, the teacher would teach her online. There were also less assignments and pressure from the teachers. However, she was unable to handle her difficulties.

38. The Tribunal asked the applicant whether there was any reason why she now needs to return to Australia. She responded that she wants to complete her studies. When asked whether her situation now is any different to the problems she had previously, she responded that since returning to China she experiences epileptic fits once a month and previously it was seven or eight times a month. She believes she has improved and can complete her studies. She wants to complete her studies.

39. Having considered the evidence, the Tribunal notes that the purpose of the applicant’s travel to Australia was to complete a Bachelor of Business degree. She enrolled in a package of courses which included an Academic English course and a Diploma of Business for the purpose of studying the Bachelor of Business degree. Despite being in Australia for over 3 years, she has not completed a Diploma course let alone commence a Bachelor of Business degree. She has provided different explanations for this to the Department and the Tribunal including that she had difficulty studying English and that she suffered from epilepsy.

40. There is no evidence before the Tribunal to indicate that the applicant is currently enrolled in a principal course of study in Australia. There is no evidence before the Tribunal to indicate that she is currently studying English or that her English language skills have improved since she was studying in Australia. There is no medical evidence before the Tribunal to indicate that she has epilepsy let alone that her health has improved to the point that she can now study in Australia. The Tribunal is not satisfied, on the evidence before it, that she has the capacity to study in Australia.

41. The Tribunal gives this consideration no weight in the applicant’s favour.  

    Extent of compliance with visa conditions

42. The records of the Department indicate that the applicant was granted the Subclass 573 Student visa so that she could graduate with a Bachelor of Business degree in Australia. The records of the Department of Education indicate that she has not been enrolled in a Bachelor of Business degree since 8 November 2017. This is a period of approximately one year and five months prior to the cancellation of her Student visa.

1. There is no evidence before the Tribunal to indicate that the applicant has breached any other condition of her Student visa other than condition 8516.

2. The Tribunal gives this consideration no weight in the applicant’s favour.  

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

3. In her response to the NOITCC, the applicant stated that she still wants to continue her studies in Australia. She stated that when she came to Australia her plan was to return to China with a Bachelor degree. That is what she told her grandparents and she does not want to break her word or lose face in front of them.

4. The Tribunal asked the applicant what hardship, if any, will be caused to her if her Student visa is cancelled. She responded that she will not be able to finish her studies.  

5. The Tribunal accepts that the applicant would be disappointed if she is unable to complete her studies in Australia and that she would be embarrassed that she was unable to keep her word to her grandparents.

6. The Tribunal gives this consideration some weight in the applicant’s favour. 

   Circumstances in which the ground for cancellation arose

7. The applicant responded to the Department’s NOITCC on 20 March 2019. In her response, she stated that she was enrolled in a package of courses at UTS. She completed Level 3 of the Academic English course but failed Part B of Level 4 of the Academic English course as it was quite difficult. The main reason for this was that she had just arrived in Australia, the study method and the living environment was not “totally accepted”. All her friends seemed smart and were able to understand what the teacher taught in class but she struggled and could not get satisfactory results no matter how hard she tried.

8. The applicant stated in her response to the NOITCC that she was under a lot of pressure both physically and emotionally during her English language studies as she kept repeating Part B. She did not consult a Psychologist because in her country seeing a Psychologist gives people the impression that she suffered from a mental illness. She contacted her mother “multiple times” and was told to cease her studies and return home. She wanted to continue her studies in Australia and return home with a Bachelor degree as she did not want to break her word to her grandparents and lose face in front of them.

9. In her response to the NOITCC, the applicant stated that she thought that a package offered by the Wentworth Institute was more suitable to her needs. This package consisted of a Diploma of Leadership and Management followed by a Bachelor of Business. After consultation with her parents she decided to enrol in this package commencing the Diploma in Leadership and Management in January 2018 and the Bachelor degree in July 2019. She did not realise that she needed to change her Student visa.

10. During the hearing, the applicant gave a very different explanation for why she was not enrolled in a Bachelor’s degree throughout the time she was the holder of a Student visa. She stated that she was sick, was diagnosed with epilepsy in 2017 and this caused difficulties with her studies. Every time she “went there” she had an (epileptic) fit, had severe headaches, continued to sleep and could not wake up. She spoke to her family about her epilepsy. They asked her to return (to China) but she wanted to study the English language.

11. The applicant gave evidence that she informed UTS about her diagnosis in 2017 and sought their assistance. She spoke to a Student Counsellor at UTS when she was studying Academic English Level 3 Part B. Because she had a number of failures this increased the pressure on her and the epileptic fits occurred more often. She spoke to her education agent about it and he advised her to transfer to the Wentworth Institute. She spoke to her former migration agent about her epilepsy at the end of 2017. She consulted a doctor in Australia in 2017 and has sought treatment here since then.

12. The Tribunal asked the applicant whether she had consulted a Psychologist in Australia and she responded no. She then stated that when she was at UTS they organised for her to consult a Psychologist and she did so in 2017. She did not inform the Department of the problems she was having with epilepsy.

13. The Tribunal raised as an issue with the applicant the inconsistencies in the explanations she provided to the Department and to the Tribunal for not complying with condition 8516 of her Student visa. She responded that her illness made her feel ashamed and so she did not mention it. She stated that she did not consult the Psychologist herself and it was organised by UTS. She did not know this would affect her Student visa. Her education agent did not tell her.

14. Having considered the evidence, the Tribunal notes that the applicant has not provided the Department or the Tribunal with any medical evidence to support her claims that she has epilepsy and that this impacted on her studies in Australia. She has been represented by two different migration agents before the Department and the Tribunal and has had access to immigration advice. Even if the Tribunal accepts that she has epilepsy and did not mention this to the Department because she was “ashamed”, it does not accept that her inability to pass Academic English Level 4 Part B was because of her epilepsy.

15. The applicant began her Academic English course after her arrival in Australia on 23 April 2016. She was enrolled in a Diploma of Business from 14 March 2017 to 19 January 2018 following completion of her Academic English course. Her evidence is that she repeated the Academic English course several times. Her evidence is also that she did not consult a doctor until 2017, was then diagnosed with epilepsy and informed her former migration agent about this at the end of 2017. It is therefore highly unlikely that the reason why she could not pass the Academic English course in 2016 was because of her epilepsy.

16. The explanation the applicant provided the Department in her response to the NOITCC is therefore more likely to be accurate which is that, unlike her friends, she had difficulty learning the English language.

17. Notwithstanding the above, the Tribunal accepts that if the applicant suffered from epileptic fits in Australia and did not have any family support here it would have impacted on her ability to study in Australia.

18. The Tribunal gives this consideration some weight in the applicant’s favour.  

    Past and present behaviour of the applicant towards the Department

19. In her response to the NOITCC, the applicant made no mention of having epilepsy or this impacting on her studies. Despite there being no medical evidence before the Tribunal to support her claim that she has epilepsy, the Tribunal accepts that she has epilepsy. The Tribunal also accepts that she may not have mentioned this to the Department for cultural reasons.  

20. Other than for the fact that the applicant did not comply with condition 8516 of her Subclass 573 Student visa, there is no other evidence before the Tribunal of any adverse behaviour on the part of the applicant towards the Department.

21. The Tribunal gives this consideration no weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140 of the Act

22. There is no evidence before the Tribunal to indicate that the cancellation of the applicant’s Student visa would result in a consequential cancellation of another person’s visa under s.140 of the Act.

23. The Tribunal gives this consideration no weight in the applicant’s favour.

    Whether there are mandatory legal consequences such as the cancellation would result in the applicant being unlawful and liable to detention, 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

24. The evidence before the Tribunal is that the applicant last departed Australia on 10 June 2019 and has not returned to Australia since then. She is currently not the holder of a Bridging visa.

25. If the applicant’s Student visa is cancelled, she will be subject to s.48 of the Act which means she will have limited options when applying for further visas while in Australia and Public Interest Criterion 4012 which may prevent her from being granted particular temporary visas for a period of three years from the date of cancellation.

26. These are the intended legal consequences in the legislation when a visa is cancelled under these grounds and it reflects the seriousness of a breach of a visa condition and consequent cancellation of a visa.

27. The Tribunal gives this consideration no weight in the applicant’s favour.   

    Whether any international obligations, including non-refoulement and best interest of the children are a primary consideration, would be breached as a result of the cancellation

28. The applicant gave evidence that she (voluntarily) returned to China on 10 June 2019. She stated that there is no reason why she cannot remain in China but she hopes that she can study in Australia.

29. The Tribunal gives this consideration no weight in the applicant’s favour.    

    Any other relevant matter

30. The Tribunal asked the applicant whether there was any other reason why her Subclass 573 Student visa should not be cancelled and she responded no. 

31. The evidence before the Tribunal, referred to above, raises concerns for the Tribunal that the applicant does not have the necessary English language skills to be able to undertake higher education studies in Australia if her Student visa is not cancelled and she returns to Australia. When the Tribunal raised this as an issue with her, she declined to respond.

32. On the evidence before it, the Tribunal is not satisfied that the applicant has the capacity to acquire the necessary English language skills to be able to study a Bachelor of Business degree in Australia.

33. The Tribunal gives this consideration no weight in the applicant’s favour. 

    CONCLUSION

34. Having considered all the evidence cumulatively, the Tribunal is of the view that the grounds for cancelling the applicant’s Subclass 573 Student visa outweigh the grounds for not cancelling her Subclass 573 Student visa. Therefore, the Tribunal concludes that the Subclass 573 Student visa should be cancelled.

    DECISION

35. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    L. Symons
    Member

    
    

    Annexure A

    8516

    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.

    [573.223] (1A)   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

    (a)      the applicant gives the Minister evidence that the applicant has:

    (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)      educational qualifications required by the eligible education provider; and

    (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)      any other relevant matter; and

    (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

    eligible higher degree student means an applicant for a Subclass 573 visa in relation to whom the following apply:

    (a)      the applicant is enrolled in a principal course of study for the award of:

    (i)    an advanced diploma in the higher education sector; or 

    (ii)      a bachelor’s degree; or

    (iii)      a master’s degree by coursework;

    (b)      the principal course of study is provided by an eligible education provider;

    (c)      if the applicant proposes to undertake another course of study before, and for the purposes of, the principal course of study:

    (i)      the applicant is also enrolled in that course; and

    (ii)      that course is provided by the eligible education provider or an educational business partner of the eligible education provider.

    [573.231]    If subclause 573.223(1A) does not apply:

    (a)      the applicant is enrolled in, or is the subject of a current offer of enrolment in, a course of study that is a principal course; and

    (b)      the principal course is of a type that was specified for Subclass 573 visas by the Minister in an instrument:

    (i)      made under regulation 1.40A; and

    (ii)      in force at the time the application was made.

    Legislative Instrument 14/015 – Types of Courses for Student visas (r.140A) 

Subclass 573 (Higher Education Sector)	Diploma (Higher Education)
Advanced Diploma (Higher Education)
Bachelor Degree
Graduate Certificate (Higher Education)
Graduate Diploma (Higher Education)
Associate Degree
Masters by Coursework