Mohammed (Migration) - [2021] AATA 1202

Mohammed (Migration) [2021] AATA 1202 (16 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr. Azhar Mohammed
CASE NUMBER:  2006077
HOME AFFAIRS REFERENCE(S):          BCC2019/5205574
MEMBER:P. Adami
DATE:16 March 2021
PLACE OF DECISION:  Melbourne, Victoria
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 March 2021 at 3:11pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolments in registered higher level courses ceased – non-commencement of studies – applicant changed to lower level course – compelling need to remain in Australia – relevance of courses to family business – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000
Migration Act 1958, ss 48, 116
Migration Regulations 1994, Schedule 2, cl 500.611; Schedule 8, Condition 8202
CASES
Koellner v Spicer [2019] NSWSC 17571
Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211
R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 42
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116(1)(b) of the Migration Act 1958 (the Act).
The applicant is a 27 year old Indian citizen, who arrived in Australia on 25 June 2018 to study a Master of Information Technology at the University of New South Wales (UNSW). The Master of Information Technology was to run from 23 July 2018 until 15 September 2020. According to the delegate’s 09 March 2020 Decision Record, the applicant’s enrolment was cancelled by UNSW on 13 August 2018 due to the non-commencement of studies. The delegate in their decision states that the applicant was not enrolled between 13 August 2018 and 20 October 2019.
On 21 October 2019, the applicant enrolled in a Diploma of Business and a Graduate Diploma of Management (Learning) at Albright Institute of Business and Language. These enrolments were cancelled by Albright Institute on 13 December 2019. The applicant has been issued a certificate of completion for a Diploma of Leadership and Management and an Advanced Diploma of Leadership and Management.
The applicant currently holds a Confirmation of Enrolment (COE) for the Advanced Diploma of Banking Services Management which has a course start date of 22 February 2021 and a course end date of 14 August 2022, and a Graduate Diploma of Management (Learning) which has a course start date of 15 August 2022 and a course end date of 13 August 2023.
The applicant’s visa was cancelled because the delegate determined that a legal basis for cancellation had been established under s116(1)(b) of the Act. The delegate concluded that the applicant had failed to comply with the condition of the visa that required the applicant to maintain enrolment in a registered course of study, that once completed, would provide a qualification from the Australian Qualifications Framework (‘AQF’) that is at the same level or higher, than the course for which the visa had been initially granted- Condition 8202(2)(b).
Upon concluding that the applicant had not maintained his enrolment at the required level (Level 9), the delegate considered all other relevant circumstances before concluding that the applicant’s visa ought to be cancelled. The delegate’s reasons are set out in their Decision Record dated 09 March 2020, a copy of which was provided to the Tribunal on 25 March 2020 by the applicant when he filed his ‘Application for review’.
The issue in the present case is whether the ground for cancellation under s116(1)(b) of the Act is made out, that is, whether the applicant did not comply with a condition of his visa. If the Tribunal determines that the ground for cancellation is made out, the Tribunal must consider whether the applicant’s visa should be cancelled.
This application was initially listed for hearing on 09 July 2020, however, the applicant failed to appear before the Tribunal, and the application was dismissed. The applicant applied to have the application reinstated on 17 July 2020 and filed a submission in support, together with medical evidence. On 24 July 2020, having reviewed the material filed by the applicant in which he sets out the circumstances of his non-appearance due to being involved in a collision whilst riding his bicycle and his medical evidence, the Tribunal reinstated the application for review.
On 29 January 2021, the Tribunal wrote to the applicant and relisted the hearing. On 12 March 2021, the applicant appeared before the Tribunal by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The Tribunal is mindful that the applicant is not required to establish that the facts or grounds for cancellation do not exist, but the Tribunal must be satisfied that the facts or grounds for cancellation do exist. In Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 the Full Court of the Federal Court of Australia at [25] stated, “The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not.” Further at [32], the Full Court stated, “A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut. The decision-maker must ultimately be satisfied that the ground for cancellation is established.”
The Tribunal in reaching its decision, has had regard to: the delegate's 09 March 2020 Decision Record, the oral evidence of the applicant given at the hearing and all the written material filed by the applicant; and other relevant documents on the Department and Tribunal files.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Section 116(1)(b) of the Act provides that the Minister may cancel a visa if satisfied that its holder has not complied with a condition of the visa. The applicant's visa was subject to a number of conditions, as prescribed by Schedule 8 of the Migration Regulations 1994 (Cth) ('the Regulations'), when the visa was granted.
Condition 8202(2)(b) attaches to all student visas and creates a continuing obligation for the duration of the visa- see Schedule 2, cl 500.611(1)(a) of the Regulations. Condition 8202(2)(b) requires that the visa holder maintain enrolment in a registered course of study that, once completed, would provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa had been granted.
The AQF is an objective measure for categorising courses within the Australian education system. It creates a hierarchy of levels associated with all courses that are registered under its framework. The AQF level of a course is an indication of the relative complexity of the course, the extent of achievement and the autonomy required that successful completion of the course represents. A course that is classified as AQF Level 1 (Certificate I) has the lowest levels of course complexity, achievement depth and student autonomy. A course that sits at AQF Level 10 (Doctoral Degree) has the highest levels.
The imposition of Condition 8202(2)(b) draws attention to the fact that all student visas are issued for a specific kind of study purpose that is tailored to the particular visa holder. The visa holder is legally obliged to adhere to that study purpose for the duration of their stay in Australia. While the condition contemplates that, at some point after the visa has been issued, the visa holder may have good reason to change their course of study, they are specifically prohibited from 'downgrading' to a simpler course on the AQF hierarchy. In that regard, condition 8202(2)(b) is one of many student visa conditions designed to ensure that Australia's student visa program is robust.
Has the Applicant Failed to Comply with Condition 8202(2)(b)?
The delegate in their March 2020 decision notes that the applicant was granted a student visa in relation to a Master of Information Technology at UNSW. The delegate notes that the applicant’s enrolment in the Master of Information Technology was cancelled on 13 August 2018 as a result of non-commencement of studies. As noted above, on 21 October 2019, the applicant enrolled in a Diploma of Business and a Graduate Diploma of Management (Learning) at Albright Institute of Business and Language.
According to the delegate, the master’s degree for which the visa was granted was at AQF level 9. The delegate further states that the Graduate Diploma of Management (Learning) is listed at Level 8. The delegate determined this change in enrolment on the basis of the information contained in the ‘Provider Registration and International Student Management System (‘PRISMS’).
The PRISMS database is maintained for the purposes of administering the Education Services for Overseas Students Act 2000 (Cth) ('the ESOS Act'). It provides a means for education providers in Australia to comply with the legislative requirements relating to international students studying in Australia. It is the principal means by which registered course providers can report changes to a student's enrolment status and notify the Department of Education and Training of any issues arising from a student's general compliance with visa conditions once a visa has been issued.
The delegate found that the applicant had breached Condition 8202(2)(b) of his visa because he had downgraded his enrolment from an AQF Level 9 course to ultimately an AQF Level 8 course, 1 level below which the visa had been granted.
On 19 February 2020, the Department of Home Affairs sent the applicant a ‘Notice of intention to consider cancellation of Student (Temporary) (class TU) Student (subclass 500) visa under s116 (General Power) of the Migration Act 1958’- (‘NOICC’). The NOICC set out particulars of the matters that have been summarised above and put the applicant on notice that the Department was concerned that he may be in breach of Condition 8202(2) of his visa. The applicant was invited to comment on these concerns before the Department determined whether his visa should be cancelled.
The applicant did not respond to the NOICC. The applicant at the hearing stated that he respected the delegate’s decision and accepted his mistake, and he sought one chance to fix his mistake and enrol in the course. The Tribunal is mindful that the applicant did not complete the AQF level 9 Graduate Diploma of Management (Learning) as proposed after having his enrolment in the master’s degree cancelled.
On the evidence before the Tribunal, the Tribunal concludes that the applicant breached condition 8202(2)(b) of his visa.
Consideration of the Discretion to Cancel the Visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However, the Tribunal is mindful that it should consider the circumstances of this case, including matters raised by the applicant during the hearing, and any relevant matters identified in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The matters that ought to be considered are specifically listed in PAM3 as follows:
(a)the purpose of the Applicant's travel to and stay in Australia, including an assessment as to whether he has a compelling need to remain in Australia;
(b)the circumstances in which the ground for cancellation arose, including consideration of whether there were any extenuating circumstances beyond the Applicant's control that led to the grounds for cancellation (as a general rule a visa should not be cancelled where such circumstances were beyond the control of the visa holder);
(c)the extent of the Applicant's compliance with visa conditions, including an assessment as to the extent to which the Applicant has otherwise complied with visa conditions, both now and on previous occasions;
(d)the degree of hardship that may be caused to the Applicant and any family members, including consideration of whether they are likely to face financial, psychological, emotional or any other hardship as a result of a cancellation decision;
(e)the Applicant's past and present behaviour towards the Department (e.g. whether they have been truthful and co-operative in their dealings with the Department);
(f)whether there are persons in Australia whose visas would, or may, be cancelled by the operation of s 140 of the Act;
(g)whether there are mandatory legal consequences arising from a decision to cancel the visa;
(h)whether Australia has obligations under any relevant international agreements that would be breached as a result.
The Purpose of the Visa Holder’s Travel and Study in Australia, Whether the Visa Holder has a Compelling Need to Travel to or Remain in Australia
The Tribunal accepts that the applicant travelled to study in Australia as a full time student. The Tribunal also accepts that the applicant has a desire to complete his currently enrolled Advanced Diploma of Banking Services Management and the Graduate Diploma of Management (Learning) and thereafter return to India.
'Compelling' and 'Need' are words that ought to be given their ordinary meaning having regard to the purposes of the legislation. They are not defined in either the PAM3 or the Act.
In Paduano v Minister for Immigration and Multicultural and Indigenous Affairs and Anor [2005] FCA 211; (2005) 143 FCR 204, Crennan J (then sitting as a judge on the Federal Court) considered the definition of the word ‘compelling’ in the context of the Migration Regulations 1994 (Cth). Her Honour concluded at [37], p213 that ‘compelling’, when considered in the legislative framework regarding the visa regime, “is wide and unqualified. “Compelling” in its wide, ordinary meaning means “forceful”.” Her Honour concluded that there was nothing in the relevant subclause which indicated that compelling should be construed narrowly so as to exclude forceful reasons which raise moral necessity or which are convincing, or which indicate that compelling includes an involuntary element, involving circumstances beyond a person’s control or necessity (see [37], p213).
Although used in a different context to the visa regime, various courts have stated that “need” is a relative concept, it is different from ‘want’ and does not simply mean ‘demand’ or ‘desire’. Lord Neuberger of Abbotsbury in R (on the application of M) v Slough Borough Council [2008] 1 WLR 1808; [2008] UKHL 42 at [54] stated, “”’Need’ is a more flexible word than it might first appear. ‘In need of’ plainly means more than merely ‘want’, but falls far short of ‘cannot survive without’.”- see Koellner v Spicer [2019] NSWSC 17571 at [123]-[126].
The Tribunal considers that the compelling need that is to be assessed in regard to PAM3 amounts to an assessment as to whether the applicant has a forceful reason to travel to or remain as a student in Australia, which is more than a want to study but less than a necessity to study in Australia.
In his Genuine Temporary Entrant (GTE) Statement filed with the Tribunal on 11 March 2021, the applicant states,
After the completion of this course [Advanced Diploma of Leadership and Management], I became more confidence and felt that somewhere and somehow, I lack in Banking management qualities that are the most essential element while running personal business. So, upon my teacher’s opinion I did some research and realized, Advanced Diploma of Banking Services and Management in Western Sydney College is a good option to study.
After some research through colleges and institutions, I found there are many study courses which could provide me a fundamental basement of how to build my career in business field along with the management of finances, to the education which leads to my desired business career in my home country India.
I choose Advance Diploma of Banking Service Management + Graduate Diploma of Management as it is not available in my Home Country and neither It was a part of my bachelor’s and the advantage is, I can get good experience after learning this course in Australia.
The reason to choose this course is, after the demonetisation in India, implementation of GST; all transactions are being done electronically. There is still a large confusion amongst the people in relation to electronic transactions which the government has enforced without prior training to individuals. All the work is constantly in hunt of improving and streaming. I believe in the course of studies I have selected will not only guide me from all the aspect of any business, banking but it will also give me required exposure that I need to boost my career. When I go back to my home country, I intend to boost my Business career with my added Banking and Management skills.
I have closely looked the subject offered in this course in Western Sydney College It covers all the aspect and hence provide with an overall comprehensive knowledge. As evident in the aforementioned paragraph I am exactly looking for the same in my future course of studies to fulfil my career goal in the future vision. I strongly believe that the subjects offered will help me to understand the practical aspect of the corporate world. [Original]
The Tribunal considers on the evidence before it that the applicant has not adequately established a compelling need to remain in Australia as a student. The applicant did not produce any corroborative evidence regarding the unavailability to study the Advanced Diploma of Banking Services Management or the Graduate Diploma of Management (Learning) in India as claimed by the applicant. The Tribunal is not persuaded that the currently enrolled courses will meaningfully assist the applicant in working at his mother’s clothing business, which he told the Tribunal he wished to work in upon his return home to India. The Tribunal is unpersuaded the courses are relevant to running his mother’s business and gives little weight to the applicant’s claims in this regard. However, the Tribunal considers more crucially, the applicant has not fulsomely explained his reasons for ceasing to study the Master of Information Technology altogether or studying at a master’s level, noting the reasons as setout below. The applicant did not support his claim about changing into a business focus beyond stating that his sponsor suggested it.
The Tribunal gives this factor moderate weight in favour of cancelling the applicant’s visa.
Circumstances in Which the Grounds for Cancellation Arose- Whether There Were Any Extenuating Circumstances beyond the Visa Holder’s Control that led to the Grounds Existing
The circumstances relating to the applicant breaching condition 8202(2)(b) are largely set out in his (GTE) Statement filed with the Tribunal. The applicant states,
I started my academic career in Australia in 2018 by enrolling into Master of Information Technology at University of New South Wales. But this was for the first time, I came somewhere to study in a place where everything was new and unknown. It was both happening and exciting for me. However, one of my friends, whom I knew from my home country school and asked me to stay with him for a few days till I get a place to live. It was a real challenge to get my own place as it was something. I was doing for the first time in my life. It became quite hard for me with the cultural shock, homesickness, sense of loneliness and study pressure. I was not being able to adjust and make friends which made me anti-social kind of a person. Coming from a metropolitan city and joint family system, I felt very isolated. Another thing is that the hardest academic system in that institute made me confused which later got affected on my education. I could not take this much study load and became sick by having frequent attacks of migraine, insomnia and weight loss. This situation was stressful for me, therefore, considering my situation I was advised by my parents to change the institute where I had some of our relatives who could look me after.
The sense of constant failure made me good for nothing. I was in severe Depression and need counselling I did not want to discuss this situation with the family as they were already going through a hard time but at the end, I had to take my family into confidence. He became very upset on hearing my situation and being my sponsor, he suggested me to take some Business- related course so that instead of facing this stress and looking for some job after going back, I could look after our family business. Hence, I chose Diploma of Business from Albright College, Sydney. I studied there for a semester but could not achieve proper knowledge. So, beside that course I also got enrolled into Diploma of Leadership and Management in an RTO College “HB Training Institute” in September 2018 and completed it in September 2029 and Advanced Diploma of Leadership and Management in an RTO College “SCBM” and completed it successfully in January 2021. [Original]

The Tribunal is also mindful that the applicant is living away from home and in a foreign country; however, having arrived as a 25 year old with an academic history, his academic and life experience sets him apart from a student arriving straight from secondary school and studying overseas, for example. The applicant states that he suffered greatly as a result, including depression. The applicant explains that he did not wish to discuss his circumstances with his family. The applicant did not file evidence with the Tribunal establishing his depression diagnosis. The Tribunal considers that the applicant might have pursued therapy for his mental health without his family knowing, and the applicant did not file evidence with the Tribunal that he was incapable of discerning about his mental health. The Tribunal is mindful that the applicant started his course on 23 July 2018 and this enrolment was cancelled on 13 August 2018 due to non-commencement of studies according to the delegate’s decision. The Tribunal considers this short period of enrolment is unlikely to have led to the depression position the applicant describes in his GTE Statement.
Further, there is no evidence that the applicant sought to defer his studies or that he contacted the Department about seeking advice to assist him with his predicament. The Tribunal notes that the applicant states that he studied the Diploma of Business (after his Master of Information Technology enrolment) for 1 semester. The delegate states that the applicant was no enrolled for the period 13 August 2018 to 20 October 2019. According to the delegate, the applicant obtained his enrolment in the Diploma of Business on 21 October 2019 which course was to start 11 November 2019, however this enrolment too was cancelled due to non-commencement of studies on 3 December 2019.
The Tribunal is unpersuaded that there were circumstances which were beyond his control that gave rise to his visa being cancelled. The Tribunal considers given the chronology of enrolments and periods of study undertaken by the applicant, that the grounds for cancellation arose and existed due to factors within the applicant’s control. The applicant did not seek a visa at any point which would have resulted in him complying with condition 8202(2)(b) even having changed into the business field of studies a year after commencing the Master of Information of Technology. There is no evidence before the Tribunal that the applicant has applied for a suitable Student visa that sees him comply with condition 8202(2)(b).
The Tribunal places substantial weight on this factor in favour of cancelling the applicant’s visa.
Extent of Compliance with Visa Conditions
The Tribunal notes that the applicant has otherwise complied with his visa conditions and breached only condition 8202(2)(b). The delegate concluded in their decision that the applicant failed to maintain enrolment at the required AQF level for 18 months, and that the applicant had not been enrolled for any study for approximately 14 months. The delegate considered the extent of non-compliance to be significant. The delegate notes that the applicant was made aware of the conditions attached to his Student visa by the Department at the time the visa was granted.
The delegate goes on to note that the applicant subsequently re-enrolled to study, however his enrolments in the Diploma of Business and Graduate Diploma of Management (Learning) courses were not at the required AQF level. The Tribunal notes that the applicant’s current enrolments in the Advanced Diploma of Banking Services Management and the Graduate Diploma of Management (Learning) obtained in February 2021 also do not meet AQF level 9.
The Tribunal considers that although the breach of visa conditions is limited to only condition 8202(2)(b), the condition is intended to reinforce the intention of the student visa, so that holders are able to enter and remain in Australia for the purposes of study at the level for which the visa was granted.
The Tribunal considers the applicant’s breach of the condition was significant given the time, however, the Tribunal is mindful that the applicant did successfully complete a Diploma and Advanced Diploma of Leadership and Management (AQF levels 5 & 6 respectively) immediately prior to his currently held enrolments. Notwithstanding the applicant’s successful completion of the Diploma and Advanced Diploma, the Tribunal gives this factor significant weight in favour of cancelling the applicant’s visa.
The Degree of Hardship that Might be Caused (Financial, Psychological, Emotional or Other Hardship)
The applicant told the Tribunal at the hearing that he wished to complete his studies and as a result he can be proud of himself and proud for his parents. The applicant also told the Tribunal that he came to study and wants to go back home having completed his studies. Essentially, the applicant submitted that he did not want to disappoint his family and not finish his proposed studies.
The applicant told the Tribunal that he doesn’t have a father, and that his mother looks after a ladies clothing business, which he will look after upon completing his studies in Australia. The applicant also told the Tribunal that his older brother was illiterate and that he is the educated child. The applicant told the Tribunal that being educated would help him find a woman to marry- by being well educated as it were.
The Tribunal is mindful that the applicant intended to study a Master of Information Technology when he arrived in Australia and the applicant did not explain how the master’s degree was relevant to his mother’s business. The Tribunal considers the applicant’s desire to run his mother’s business as a more recent development since his arrival and is an unrelated hardship to any hardship arising from his breach of condition 8202(2)(b). Whilst the applicant may be a more desirable suitor as a husband having completed his currently enrolled courses, the benefit that the applicant may gain from completing his intended studies in Australia in this regard is speculative and, in any case, the applicant’s proposed studies are not at AQF level 9.
The applicant told the Tribunal that he was financially strong and did not submit that any paid course fees would be wasted or submit that any financial hardship would result should his visa remained cancelled.
The Tribunal accepts that disappointment may arise both personally and from his family should he not complete his enrolled studies, and that this is an emotional hardship to be weighed. The Tribunal accepts that the applicant and his family may suffer some hardship if the applicant’s visa remains cancelled. This disappointment might be offset given the applicant has successfully studied a Diploma and Advanced Diploma of Leadership and Management whilst studying in Australia, and so has obtained qualifications that might help him in his future employment. The Tribunal considers the hardships that are said to be suffered by the applicant and his family are ameliorated by the applicant’s failure to maintain suitable enrolment or to apply for the correct visa having enrolled at a lower AQF level.
Given there is no evidence before the Tribunal that the applicant contacted the Department to protect his visa status by holding the suitable visa for the level of his studies, or as to the existence of the applicant’s social or economic ties to Australia which may also give rise to a hardship, the Tribunal gives minimal weight to this factor against cancelling the applicant’s visa.
Past and Present Behaviour of the Applicant towards the Department
The applicant told the Tribunal that he did not respond to the 19 February 2020 NOICC because of an email issue (although the Tribunal notes that the NOICC was sent to the applicant at 2 email addresses and sent by registered post to the applicant). The applicant was cooperative in his dealings with the Tribunal. No adverse information has been provided to the Tribunal that he has been uncooperative with the Department or departmental staff. The Tribunal gives minimal weight to this factor in favour not to cancel the applicant’s visa.
Whether there are Persons in Australia whose Visas Would, or May, be Cancelled Under s140
The applicant did not make any claim to the Tribunal relating to any person in Australia whose visa would, or may be, cancelled under s140 of the Migration Act 1958. The Tribunal considers this factor is not relevant and therefore places no weight on this factor in the applicant’s favour not to cancel his visa.
Mandatory Legal Consequences Arising from a Decision to Cancel the Visa
The Tribunal notes that the delegate in their decision refers to the possibility that the applicant will become an unlawful non-citizen and may be liable to detention under s189 and removal under s198 of the Migration Act if he does not voluntarily depart Australia. The delegate also refers to s48 of the Migration Act which would cause the applicant to have limited options if applying for a further visa while in Australia. The delegate also refers to the applicant possibly being excluded from being granted certain visas for a 3 year period should his visa remain cancelled.
The applicant did not submit that he would be subject to consequences beyond the ordinary consequences should his visa be cancelled.
The Tribunal considers that these consequences are intended possible outcomes as a result of a cancellation of an applicant’s Student Visa. Detention would arise only if the applicant were not to return to India voluntarily in the time permitted to leave after an unfavourable decision. There is no evidence that the applicant will not voluntarily depart Australia should the visa remain cancelled. Therefore, the Tribunal places little weight on this factor in the applicant’s favour not to cancel his visa.
Whether any International Obligations, Including Non-refoulement and Best Interests of the Children as a Primary Consideration, Would be Breached as a Result of the Cancellation
There is no information before the Tribunal that this application raises any questions of Australia’s international obligations. The Tribunal considers this factor is not relevant and therefore places no weight on this factor in the applicant’s favour not to cancel his visa.
Any Relevant Matters
The Tribunal does not consider there are other material relevant matters which weigh upon this review.
The Tribunal found the applicant to be sincere at the hearing, and it has carefully considered the circumstances of the applicant and the circumstances of him breaching condition 8202(2)(b). On balance, the Tribunal considers that the factors against cancellation are outweighed by those factors in favour of cancellation. As such, the Tribunal concludes that the applicant’s visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
P. Adami

Member
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)     The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)     a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)     must be enrolled in a full time registered course; and
(b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)     must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.