Liu (Migration)

[2019] AATA 3618

Liu (Migration) [2019] AATA 3618 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss. Sijie Liu

CASE NUMBER:  1823053

HOME AFFAIRS REFERENCE(S):           BCC2018/2310911

MEMBER:P. Adami

DATE:31 July 2019

PLACE OF DECISION:  Melbourne, Victoria

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

Statement made on 31 July 2019 at 2:21pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – length of non-enrolment – victim of theft – payment of fees – mental health issues – failure to take reasonable steps – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant failed to maintain enrolment in a registered course in breach of condition 8202(2) of Schedule 8 to the Migration Regulations 1994 (the Regulations). The delegate considered that the factors against cancellation did not outweigh those in favour, and cancelled the visa. A copy of the delegate’s decision was provided to the Tribunal.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant is a 25 year old Chinese national who arrived in Australia in July 2010 to complete secondary schooling. The applicant completed Year 12 in December 2012. Thereafter the applicant has enrolled in various courses, and is currently studying a Diploma of Leadership and Management at Della International College.

5. The applicant appeared before the Tribunal on 21 June 2019 to give evidence and present arguments. The applicant was represented in relation to the review by her registered migration agent. The applicant provided the Tribunal with a copy letter addressed to the Tribunal dated 20 June 2019 written by her in support of her application. The applicant also provided a report dated 19 June 2019 prepared by Jeffrey Cummins, Forensic & Clinical Psychologist, in support of her application. The consideration of both of these documents is set out below.

6. 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

7. 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?

8. 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 not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course from 23 December 2017 until the date of cancellation on 7 August 2018. At the hearing, the applicant conceded that she was not enrolled from 23 December 2017 until she obtained a Confirmation of Enrolment (COE) on 30 July 2018.

10. On the evidence before the Tribunal, the applicant was not enrolled in a registered course for this 7 month period. Accordingly, the applicant has not complied with condition 8202(2) and the visa is liable to cancellation under s116(1).

    Consideration of the discretion to cancel the visa

11. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

12. The applicant was sent a Notification of Intention to Consider Cancellation (NOICC) letter on 23 July 2018. The Department of Home Affairs received a response to the NOICC on 30 July 2018. In her response to the NOICC dated 30 July 2018, the applicant through her registered migration agent stated that her enrolment fee was stolen by her previous student agent “so she did not have enough sufficient fund to cover her study. She reported the matter to police on 30 April 2018.”[Original] The applicant states that she was ashamed for her “reckless decision to trust an agent so she did not disclose the incident to her parents.” Instead of asking for more money from, her parents, the applicant “went to work part-time in order to save some cash for the enrolment fee. She is now really regretted of her behaviour and wished she could ask financial support from her parents instead of saving money by herself.”

13. The response to the NOICC goes on to state that the applicant wishes to get back to study and that she understands the “seriousness of not compliance of her visa condition”. The applicant states she was willing to return to her Certificate III in Carpentry; however she was informed by Della International that the course was not starting until October 2018, as a result she was advised to enrol in the Diploma of Leadership and Management in order to be considered for the carpentry course. The response to the NOICC also states, “Our client arrived in Australia to study high school in a very young age...she has not received much parental guidance in relation to her study and life decision…Our clients’ parents also wish her to continue to study in Australia and complete her Certificate III in carpentry as soon as possible.”[Original]

14. As of 30 July 2018, the applicant held a COE for a Diploma of Leadership and Management, which she is expected to complete at the end of August 2019.

15. In her 20 June 2019 letter addressed to the Tribunal, the applicant states that over the last 12 months she has “experienced a very unfortunate set of circumstances leading-up to the cancellation of my visa.” The applicant set out that she was a victim of a fraud which resulted in her losing $4,500 and that she was unable to pay her fees. The applicant restated that she was afraid to disclose the incident to her parents thinking they would think her as foolish. The applicant states,

    “the carpentry course was totally not what I expected. I thought I would be learning to make furniture when in fact it was about building houses. The course was 100% male dominated which made me feel very uncomfortable. The stress of the theft and inappropriate course caused me to lose focus on my studies and ultimately lose my place at Della College.”

16. The applicant goes on to state that she spoke to Mr. Cummins late in October 2018. “He spoke to me at length and I feel that he could help me if I stay in Australia and I am now seeing him on a regular basis. My first regular visit was just last Wednesday. I can see now that in the past my actions have been immature and have not helped me. However, I am now confident that if I am allowed to return to study, I will be successful.”

17. Mr Jeffrey Cummins in his 19 June 2019 report begins his report, “…I re-examined Ms Liu at my rooms on 7/6/2019. I confirm I previously examined Ms Liu at my rooms on 29/10/2018, as a result of which I provided a detailed report to your office dated 12/11/2018, in which I diagnosed her as suffering from a Major Depressive Disorder which was mild-moderate and recurrent in type and associated with anxious distress.” The November 2018 report referred to by Mr. Cummins was not filed with the Tribunal and has not formed part of the applicant’s material in support of her application.

18. Mr. Cummins proceeded to take a history of the applicant’s personal circumstances and spoke to the applicant about the history which led to her student visa being cancelled. The applicant stated to Mr. Cummins, “Well when I first enrolled into a tertiary course I was so confused about what I wanted to do. I’ve had lots of immigration agents and they’ve all suggested different things and now what I’ve worked out is that they’ve had different deals going on with schools and colleges. I always followed their advice because I didn’t know any better.” The applicant then set out her study history with Mr. Cummins. “Initially I studied accounting, then hospitality, then management and then I was going to study carpentry at Della International College but recently…what I really want to do is interior design.”

19. The Provider Registration and International Student Management System (PRISMS) record shows:-

    The applicant successfully completed Years 11 & 12 secondary schooling in December 2012.

    From March 2104 to September 2014, the applicant completed a Certificate IV in Business.

    The applicant enrolled in a Bachelor of Business for the period July 2014 to June 2016; however the applicant cancelled this enrolment.

    From November 2014 to November 2015, the applicant completed a Diploma of Management.

    In January 2016, the applicant enrolled in an expected 6 month course of Advanced Diploma of Leadership and Management. This applicant cancelled this enrolment.

    In February 2016, the applicant enrolled in a Certificate III in Commercial Cookery which was expected to be completed in December 2016, but this enrolment was cancelled due to unsatisfactory course progress.

    The applicant enrolled in a Bachelor of Business that was to run from August 2016 to July 2019, however the applicant cancelled this enrolment. The delegate in their 7 August 2018 decision states that the applicant was granted a visa on 18 October 2016 for the purposes of studying a Bachelor of Business.

    In February 2017, the applicant enrolled in an expected 5 month Certificate IV in Commercial Cookery, however this enrolment was cancelled.

    The applicant enrolled in a Diploma of Hospitality expected to run from July 2017 to December 2017, however this enrolment was cancelled.

    The applicant enrolled in a Certificate III in Carpentry, which was expected to run from September 2017 to September 2018. The applicant’s enrolment was cancelled as a result of the non-payment of fees on 23 December 2017. The delegate in their decision states, “after her enrolment was cancelled, she continued to reside in Australia on the student visa for more than 7 months before attempting to re-enrol.”

20. In her response to the NOICC dated 30 July 2018, the applicant states that she enrolled in the Diploma of Leadership and Management because she was told that the Certificate III in Carpentry was not commencing until October 2018, and that she was advised to enrol in the Diploma of Leadership and Management in order to be considered for the carpentry course. The applicant holds a COE for the Diploma which lists the course end date as 25 August 2019.

21. The applicant told the Tribunal that her mother asked her “after so many years of study, what kind of certificate do you have?” The applicant told the Tribunal that she was not sure what course to study after school, and that she had a serious chat with her parents, and now she is not interested in business courses and that she wishes to study interior design at RMIT. The applicant explained to the Tribunal that she had been studying courses that her parents desired more than she desired. The applicant stated she believed the Diploma in Carpentry course to be similar to interior design, but found out that it was not. The applicant has studied in various inexpensive and differently focused courses.

22. The applicant explained to Mr. Cummins as set out in his 19 June 2019 report and to the Tribunal that it was the $4,500 fee for this Certificate III in Carpentry that was taken by her former “case manager”. The circumstances as explained was that Della International College telephoned the applicant enquiring about the non-payment of fees. The applicant explains that Jennifer Patrick, her case manager, asked that the applicant deliver the $4,500 fee to her at her house. The applicant states that this money was not forwarded to Della International College and was in fact retained by Ms. Patrick. As noted above, in her letter of 20 June 2019 to the Tribunal, the applicant states the stress of the theft and inappropriate course caused her to lose focus on her studies.

23. The applicant also explained to the Tribunal that she did not study during April 2018 to June 2018, but that she took the police report to Della, who told her that she could finish the course but that she also needed to submit 22 assignments in 2 weeks. This was described by the applicant as a “most stressful time.”

24. At the hearing in this application, Mr. Muhammad Sohaib from Econ Business Solutions, the employer of Ms. Patrick, gave evidence that 2 other clients were also approached in a similar fashion as the applicant had been, and that they had also paid money personally to Ms. Patrick. Mr. Sohaib gave evidence that Ms. Patrick resigned from her job and that the applicant was in tears about the loss of her tuition fee. Mr. Sohaib accompanied the applicant to the Clayton Police Station on 30 April 2018, where a report was made to police. Mr. Sohaib stated that charges were laid against Ms. Patrick, but he did not know of any outcome.

25. Mr. Cummins concludes his report writing, [Ms. Liu] does appear to have the intellectual capacity to study a tertiary course such as interior design at RMIT. She does present as having some comprehension difficulties, although presents as being of sufficiently high intelligence to be able to overcome the language/comprehension difficulties…She has never had a problem with alcohol, drugs, gambling or intimate relationships.” Mr. Cummins notes the applicant’s condition was, “…ironically exacerbated as a result of her parents now having been granted the 118A/8888 visa.”

26. It is Mr. Cummins conclusion that, “Because of her current immigration situation and her relative immaturity, I remain of the opinion she could benefit from receiving mental health treatment. To date she has not been prescribed an antidepressant or anti-anxiety medication. At interview she stated she was opposed to taking any mood stabilising medication. In my opinion, at interview on 7/6/2019 she appeared to be reluctant to receive mental health treatment and she spoke about the need for such treatment as being embarrassing for her.”

27. The Tribunal considers that the applicant was aware that she was studying in Australia from a relatively young age, without the ordinary parental and family support. The immaturity as described to the Tribunal and the distinct cultural differences that Australia provided were known to the applicant and her parents before the applicant came to study in Australia. The Tribunal further considers that since the applicant arrived in Australia and lived and studied, the effect of these factors did not cause the applicant to permanently return home to her family and familiar culture. The Tribunal considers that any immaturity and trepidation felt by the applicant, as suggested, would likely have caused the applicant to return home and not stay in Australia since 2012.

    The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

28. The applicant confirmed with the Tribunal that the initial purpose of her travel and stay in Australia was to study at secondary school level, which she successfully did before travelling to Melbourne and commencing, but not completing a Diploma of Business. The Tribunal notes the delegate’s finding that the applicant was granted a visa on 18 October 2016, with the purpose to study a Bachelor of Business- a higher qualification.

29. The applicant stated to Mr. Cummins and to the Tribunal a keenness to undertake the interior design course at RMIT. The Tribunal accepts the applicant’s desire in this regard, but the Tribunal does not consider this to be a compelling need for her to remain in Australia. The applicant has been in Australia since 2010 and studying at a tertiary level since 2013. In that period the applicant has completed a Certificate IV in Business and a Diploma of Management. The Tribunal notes there has been intervening events which have hampered the applicant’s academic achievement which have in part, been outside of her control and that have contributed to her poor progress. The applicant’s actions and at times inaction have also contributed to this outcome.

30. The Tribunal also notes the delegate’s finding that the applicant sought enrolment after being contacted by the Department and the issuing of the NOICC. The delegate states that the current COE held by the applicant is not a suitable course in order for her to meet her TU500 (Higher Education) visa. It is unclear whether the applicant’s intended interior design course at RMIT will be at the suitable level, however, if it does not meet the TU5000 (Higher Education) requirements, an appropriate visa should be considered.

31. The Tribunal considers that more than 7 months non-enrolled is a significant period. The applicant did not declare any steps that she had taken to defer her studies or that she sought a deferral of studies on compassionate grounds. The applicant did not declare any steps that she had taken to contact the Department about her non-enrolment. The applicant did not depart Australia and return when she felt comfortable to do so, nor did she seek assistance from her parents. The applicant did not set out to the Tribunal the steps she took with Mr. Muhammad Sohaib about any efforts to recompense the applicant so as to put her in the position she was before the theft. The applicant remained in Australia non-enrolled and in non-compliance of the conditions of her student visa.

32. The Tribunal give this factor minimal weight in favour of the applicant’s visa not being cancelled.

    The extent of compliance with visa conditions

33. The Tribunal accepts that the applicant has not engaged in any other conduct breaching her visa conditions, and the Tribunal finds that the applicant has only breached condition 8202. The period of non-enrolment is significant and the Tribunal considers that although the breach of visa conditions is limited to condition 8202, condition 8202 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.

34. The Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.

    The degree of hardship that may be caused (financial, psychological, emotional or other hardship) to the applicant and any family members

35. The Tribunal is mindful of the emotional and psychological hardship that may be caused if the applicant is unable to complete her studies. The applicant is confident that if she is allowed to study, that she will be successful. The applicant stated to Mr. Cummins that she is now “very motivated to undertake the interior design course at RMIT.” The applicant was assessed by Mr. Cummins “as having the ability and capacity and motivation to now undertake and remain committed to appropriate tertiary studies.” The Tribunal considers it is difficult to accept this bare assertion.

36. The applicant explained to the Tribunal that her parents were now living and working in Queensland on a Business Innovation and Investment visa. Mr. Cummins noted the irony that the applicant’s condition “was exacerbated as a result of her parents now having been granted the 118A/888 visa.” The applicant also stated to the Tribunal that her brother was studying Year 12 in Adelaide.

1. The Tribunal accepts that the applicant and her family may suffer some hardship if the applicant’s visa remains cancelled. However, the hardships are ameliorated by the applicant’s failure to adequately consider and execute her study plan whilst in Australia. As noted above the applicant has completed a Certificate IV in Business and a Diploma of Management since finishing Year 12 in December 2012, and has enrolled in and cancelled many other courses and degrees since completing Year 12. No successful study has been at the bachelor degree level, as was originally intended by the applicant.

2. The hardships that may be felt by the applicant and her family are ameliorated by the applicant failing to proactively and positively manage her affairs in Australia. Whilst the set back of the theft was outside her control, the applicant did not contact Della or the Department about the financial hardship caused, or the mental hardship she felt as a result. The hardship is also ameliorated by the fact that the applicant did not report the matter to police until 4 months after becoming unenrolled, and she continued to remain unenrolled for a total of 7 months before attempting to re-enrol.

3. Given the applicant did not act to protect her enrolment and did not keenly pursue a police report, the Tribunal tempers the weight attached to this factor against cancelling the applicant’s visa. As a result, the Tribunal gives minimal weight to the hardship factor in favour of not cancelling the applicant’s student visa.  

   The circumstances in which the ground of cancellation arose- whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing

4. The theft of the $4,500 as explained above, formed much of the applicant’s explanation of the circumstances that lead to the ground of cancellation arising.

5. The applicant’s enrolment was cancelled on 23 December 2017. The applicant made her report to police regarding the theft of the $4,500 enrolment fee on 30 April 2018. No matter the fear or shame about having to ask her parents for more money, or of having trusted her agent, the police report was made 4 months after the applicant’s enrolment was cancelled.

6. The Tribunal notes Mr. Cummins’ opinion in which he describes the applicant’s “relative immaturity” but he does not qualify this in way. Mr. Cummins also notes the applicant has “the intellectual capacity to study a tertiary course such as interior design” and although possessing some comprehension difficulties, the applicant “presents as being of sufficiently high intelligence to be able to overcome the language/comprehension difficulties.” Mr. Cummins states, “She [the applicant] presented as being of at least high average intelligence.”

7. In his report Mr. Cummins states that the applicant “confirmed in 2017 she attended a person who she thought was a Chinese-speaking counsellor/psychologist in a Melbourne suburb. She said- “In a way I went there out of curiosity but I also went there because I was feeling psychologically lost and confused about which course of study I should follow.”” No material about the number of visits to this counsellor/psychologist was provided to the Tribunal. The Tribunal considers that the applicant did not have a specific focus as to her studies, and perhaps required the services of a career/guidance counsellor.

8. Mr. Cummins prepared his report on 19 June 2019. In it he states that he met with the applicant at his rooms on 29 October 2018 and provided a report to Ms. Beatrice Fang of Econ Business Solutions. This report was not provided to the Tribunal. Mr. Cummins also states in his 19 June 2019 report that he interviewed the applicant on 7 June 2019, which provided the basis for his 19 June 2019 report. Mr. Cummins states, “I remain of the opinion she [the applicant] could benefit from receiving mental health treatment.” Mr. Cummins does not set out a history of regular consultations with himself or with any other mental health professional.

9. In her letter of 20 June 2019, the applicant states, “I spoke to Mr. Cummins late in 2018. He spoke to me at length and I feel that he could help me if I stay in Australia and I am now seeing him on a regular basis. My first regular visit was just last Wednesday.” This statement is at odds with Mr. Cummins who noted, “In my opinion, at interview on 7/6/2019 she [the applicant] appeared to be reluctant to receive mental health treatment and she spoke about the need for such treatment as being embarrassing for her.”

10. On the materials provided to the Tribunal, it has not been established that the applicant is regularly seeing Mr. Cummins, or anyone else, for treatment. The applicant stated to Mr. Cummins that she sought help in 2017, but the extent of that help was not set out to the Tribunal. The Tribunal did not receive any material to directly support the contention that the applicant was incapacitated to the extent that she could not suitably deal with Della International College about the theft, and seek to resolve how she would pay her enrolment fee. The Tribunal did not receive direct evidence that the applicant was incapacitated from reporting the matter to police in a timely fashion, both actions which the Tribunal expects a genuine student to have made.

11. The Tribunal gives this factor significant weight towards the applicant’s visa being cancelled.

    Past and present behaviour of the visa holder towards the department

12. The applicant responded to the NOICC, and she has been engaged with the Department in the cancellation process, and before the Tribunal. The Tribunal gives this factor minimal weight in favour of the applicant’s visa not being cancelled.

    Whether there would be consequential cancellations under s140

13. There are no other persons whose visa would or may be cancelled under s140 of the Act. The Tribunal considers this factor is not relevant in determining the applicant’s application.

    Whether there are mandatory legal consequences of a cancellation; whether cancellation would result in the visa holder becoming unlawful and being liable to detention and removal; or whether indefinite detention is a possible consequence of cancellation; or whether the visa holder would be prevented from making a valid visa application without the Minister’s intervention

14. The Tribunal asked the applicant whether she had any comment on this factor. The applicant did not propose any consequences and the Tribunal considers that, like the delegate, the ordinary results may follow. The delegate noted that the cancellation of the applicant’s visa may result in the applicant becoming an unlawful non-citizen and may therefore be liable to detention and removal under the Act should she not voluntarily depart Australia.

15. The delegate also found that if the applicant’s visa was cancelled under s116 of the Act, the applicant will become subject to s48 of the Act which will result in the applicant having limited options to apply for further visas in Australia. The applicant would also be subject to the Public Interest Criterion 4013 with the effect that she may not be granted a temporary visa for a period of 3 years from the date of the cancellation.

16. The Tribunal finds that there are mandatory legal consequences, as set out in the delegate’s decision, which would impact the applicant should she not voluntarily return to her home country. The Tribunal considers that this factor weighs against the exercise of discretion in the applicant’s favour not to cancel his visa, as these consequences are the intended outcome of a finding that a breach of a visa should result in the cancellation of that visa. The Tribunal finds that this consideration is neutral and does not weigh in support of, or against, the cancellation of the applicant’s student 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

17. There is no information before the Tribunal that any international obligations would be breached as a result of visa cancellation. As a result, the Tribunal considers this factor not to be relevant in determining the applicant’s application.

    Any other relevant matters

18. Adopting the procedure in s359A of the Act, the Tribunal wrote to the applicant on 12 July 2019. The Tribunal’s letter sought comment from or response by the applicant to information which suggested:- the applicant did not attend classes/school; that her enrolment was a sham; she worked more than 40 hours per fortnight; and that she was working for cash.

19. The Tribunal’s 12 July letter explained the relevance of this information to the review process and the consequences of the Tribunal relying on the information. On 26 July, the applicant filed a statutory declaration in response to the Tribunal’s letter, which was declared 26 July 2019. The Tribunal considers the statutory declaration as a further submission in support of the applicant’s review. In her statutory declaration, the applicant summarised her position as had been more fulsomely explained to the Tribunal at the hearing (which has been considered above), and the Tribunal has carefully considered it.

20. In regards to the s359A letter and the opportunity to comment on or respond to the information provide to the Tribunal, the applicant declared, “I have never been engaged in any activity of breaking the law in Australia.” I have carefully considered the potentially adverse information and the applicant’s response to it. The information was in the form of an unproven allegation and is not very detailed. For these reasons I have placed no weight on this adverse information in arriving at my decision.

    Conclusion

21. The Tribunal has carefully considered the personal circumstances of the applicant and the circumstances of her becoming unenrolled. The applicant emphasised that she was young when she first came to study in Australia and that she had no guardians; she was challenged by the cultural differences; she was immature; and she studied courses more that her parents wanted to study, not one’s which she wanted to study. The Tribunal is understanding of these issues as expressed to the Tribunal, however, the applicant has elected to remain and study in Australia despite them.

22. The Tribunal is sympathetic to the mental and financial position the applicant found herself in relation to the theft, and is mindful that her parents are now living in Queensland on a Business Innovation and Investment visa. Strongly weighing against this are my findings that the applicant did not take steps to defer her studies as a result of the theft, or on other compassionate grounds, and further the applicant did not promptly report the matter to police. The applicant did not engage career/guidance counsellors or mental health professionals to assist her to overcome the difficulties she felt. Having regard to the weighing of the factors above, and considering the totality of the applicant’s evidence, along with all of the information before me, I find that in this case the factors in favour of cancellation outweigh those against cancellation.

    DECISION

23. 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 (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.