Mugdho (Migration)

Mugdho (Migration) [2022] AATA 5041 (16 August 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Md Rafith Yeasin Mugdho
REPRESENTATIVE:  Mr Rhys Strang
CASE NUMBER:  2204082
HOME AFFAIRS REFERENCE(S):          BCC2021/2332259
MEMBER:Frank Russo
DATE:16 August 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 16 August 2022 at 10:15am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – requests for adjournment – ground for cancellation – enrolment – not enrolled in a registered course – PRISMS record – consideration of discretion – purpose for remaining in Australia – enrolment history – extent of the breach – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202
CASES
Hasran v MIAC [2010] FCAFC 40
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 March 2022 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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant was not enrolled in a full-time registered course of study since 23 November 2019 until the date of the delegate’s decision on 11 March 2022. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant is a 25-year-old national of Bangladesh. The applicant arrived in Australia in 2017 holding a Student visa, which was scheduled to expire on 15 March 2022. The applicant was represented in relation to the review.
The Tribunal invited the applicant to attend four telephone hearings, which were scheduled on 29 April 2022, 13 May 2022, 6 June 2022 and 14 July 2022. Prior to each hearing, the applicant’s representative forwarded to the Tribunal a response to each hearing invitation.
On 28 April 2022 the Tribunal received a request for postponement of the hearing scheduled for 29 April 2022, attaching a medical certificate from Dr Kalyanie Kuruppuarachchi of Kingsford Family Medical Centre, certifying the applicant had attended their clinic on 28 April 2022 and had Acute Laryngitis and was considered unfit for ‘tele-communication work’ or to attend work from 28 April 2022 to 2 May 2022 inclusive. The Tribunal granted the adjournment and invited the applicant to attend a hearing scheduled on 13 May 2022.
On 12 May 2022 the Tribunal received a request for postponement of the hearing scheduled for 13 May 2022, attaching a medical certificate from Dr Sook Phon of Kingsford Family Medical Centre, certifying the applicant attended their clinic on 12 May 2022 with ‘recurrent acute laryngitis’ and was considered unfit for work (including tele-communication work) from, 12 May 2022 to 17 May 2022. The Tribunal granted the adjournment and invited the applicant to attend a hearing on 6 June 2022.
On the morning of the hearing scheduled for 6 June 2022 the Tribunal received a telephone call from the applicant’s representative, who advised the Tribunal that the applicant had advised him that he was at an emergency department and was unable to attend the hearing. The Tribunal opened the hearing at the scheduled time of 10:30am EST. The hearing was attended by the applicant’s representative, who confirmed that he had been advised by the applicant that morning that the applicant was at an emergency ward and would be unable to attend the hearing. The Tribunal adjourned the hearing to a date to be set and gave the applicant until 5:00pm EST on 8 June 2022 to provide evidence in support of his attendance at an emergency department that morning.
On 8 June 2022 the Tribunal received a letter from the applicant’s representative, which attached a Medical/Attendance Certificate of the applicant’s attendance at the Prince of Wales Emergency Department on 6 June 2022. This certified that the applicant was unfit for ‘usual activities’ from 6 June 2022 to 8 June 2022. It contained the following coiments:
for vocal rest for the next 2 – 3 days
can continue other duties.
On 13 July 2022 the Tribunal received a request for postponement of the hearing scheduled for 14 July 2022, attaching a medical certificate from Dr Sook Phon, indicating the applicant had attended their clinic on 13 July 2022 with ‘recurrent acute laryngitis’ and was unfit for work (including tele-communication work) from 13 July 2022 to 16 July 2022.
The Tribunal has thus received four requests for adjournment or postponement of the hearing between April and July 2022 and granted four adjournments.
On 28 July 2022 the Tribunal wrote to the applicant in accordance with s.359A of the Act, inviting him to comment or respond to information which it considered, subject to the applicant’s comments or response, may be the reason or part of the reason for the Tribunal affirming the decision under review. The information was sent to the applicant’s registered migration agent and advised that, if the information was not provided in writing by the prescribed period, being 12 August 2022, or within any extended time as requested and granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The Tribunal put to the applicant information from an extract from his enrolment record in the Provider Registration International Students Management System (PRISMS), which indicated that the applicant was not enrolled in a registered course of study from 23 November 2019 to 11 March 2022 (the date of the delegate’s decision). The Tribunal advised that this information may be relevant to both the issue of whether the applicant had breached the conditions of his Student visa, as well as to consideration of the discretion whether to cancel the visa.
The applicant did not provide the information within the prescribed period. On 12 August 2022 the applicant requested an extension of time. In his request, which was sent by an email with a sent timestamp of 4:35pm EST, the applicant stated that he has been unable to get his appointed representative to help him with his case and received a ‘notice of resignation’ from his representative, which he attached, and which he claimed was due to his representative’s ill health. The applicant requested an extension of time to allow him to find and appoint a new representative. The applicant did not specify a timeframe for the extension. The applicant attached an email sent to him by his representative, which is timestamped as sent at 1:56pm 10 August 2022. In this email, the applicant’s representative advised the applicant as follows:
Due to my ill health and your ongoing and persistent failure to respond to my reasonable requests for instructions please take notice that I will no longer act on your behalf.
After carefully considering the applicant’s request for an extension of time, the Tribunal decided to not grant the request. This decision was communicated in writing to the applicant on 15 August 2022. In not granting the extension of time, I note that the reasons given by the applicant’s representative for withdrawing his representation include ongoing and persistent failure by the applicant to respond to reasonable requests for instructions. While I note and have had regard to the applicant’s claim that his representative withdrew his representation due to ill health, the email which the applicant has attached indicates that this is not a complete explanation and indicates that the applicant’s failure to comment or respond to the information put by the Tribunal under s.359A is partly the result of the applicant’s failure to respond to reasonable requests for instructions from his representative. I also note that the email sent by the applicant’s representative was sent on 10 August 2022, but the applicant did not request an extension of time until 4:35pm on Friday 12 August 2022, the final day he had to comment or respond to the information. Under the circumstances I do not consider the applicant has provided adequate reasons to explain why he was unable to comment or respond to the information by 12 August 2022. The Tribunal does not consider the circumstances appropriate for the grant of an extension of time or further adjournment and has accordingly not granted the adjournment.
As the Tribunal did not receive the applicant’s comments or response by 12 August 2022, s.359C of the Act applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to a decision without taking further steps to obtain the information.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
In addition to his application form for review, the applicant provided the Tribunal with a response to the invitation for the hearing scheduled for 29 April 2022, together with the following documents:
a.Submissions from the applicant’s representative;
b.Letter of Airways Aviation, dated 17 August 2018, informing the applicant of acceptance to the Diploma of Aviation commencing on 22 October 2018 and ending on 2 October 2019; and
c.An ‘ADAPT’ (Assess, Develop and Performance Testing) Online Report for the applicant, dated 24 August 2017.
As noted above, the applicant also provided responses to the invitations for the hearings scheduled for 13 May, 6 June and 14 July 2022, as well as the medical certificates set out above. I have considered and had regard to these documents.
I have also had regard to the Department file and the information on that file. In particular, I note that on 19 January 2022 the Department sent the applicant a notice of intention to consider cancellation (NOICC) of his visa, which the applicant did not respond to.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The written submission from the applicant’s agent, dated 26 April 2022, provides the following information: the applicant first arrived in Australia in 2017, holding a Student visa which was granted on 9 January 2017 and was due to expire on 15 March 2022. The visa was cancelled on 11 March 2022. The applicant was initially enrolled in a Foundation Course at UNSW, following which he was due to undertake a Bachelor of Aviation (Flying) at UNSW. He did not complete the Foundation Course as he decided to pursue pilot qualifications through a different pathway. The applicant sought advice on his options for obtaining pilot qualifications. He sat but failed a test with the Australian Wings Academy in August 2017, a copy of which he provided to the Tribunal (the ‘ADAPT’ Online Report, dated 24 August 2017). The submission indicates that the applicant ceased studying at UNSW at about the time he sat the ADAPT test.
The applicant was accepted to study a Diploma if Aviation at Airways Aviation in Queensland, but he did not take up this offer because it required him to move to Queensland, where he would be away from his uncle, who was his only support in Australia. The applicant provided the Tribunal with a copy of a letter of offer from Airways Aviation, dated 17 August 2018, which was for the Diploma of Aviation commencing on 22 October 2018 and ending on 2 October 2019. The also wished to pursue entry into the Wings Academy, which the submission indicates is the superior course.
The submission states that the applicant maintained enrolments in various English courses. It states that in early 2020 the applicant was again ready to enrol in an aviation course, but withdrew from it when the COVID-19 pandemic commenced. He was advised by Australian Wings Academy that the course was to be suspended. In addition, the applicant was unable to work and was ineligible for income support.
The submission indicates that the applicant concedes he has not been enrolled in a registered course ‘for a considerable period of time.’ It states that the applicant still wishes to enrol in and complete a Diploma of Aviation and wishes to be afforded one final opportunity to do so. The submission notes that the costs for such a course are considerable.
As noted above, the Tribunal used the procedure in s.359A of the Act to put to the applicant information from his PRISMS enrolment record, which the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. This information was put to the applicant in writing on 28 July 2022 and the applicant was given until 12 August 2022 to comment or respond to the information that was put to him.
According to the information contained in the extract from the PRISMS database, the applicant was enrolled in Standard Plus Foundation Program, which commenced on 18 January 2017 and was due to end on 24 November 2017. This enrolment was cancelled on 12 October 2017 because the applicant notified his education provider that he was ceasing those studies. The applicant had two enrolments in the Bachelor of Aviation (Flying), both with a start date in February 2018. The first enrolment was varied prior to commencement of the course. The second enrolment was cancelled on 12 October 2017 due to ‘Non commencement of studies.’
The information indicates that the applicant had various enrolments in English language courses within the ELICOS sector from 9 October 2017 to 22 November 2019, starting with English for Academic Purposes with IELTS Exam Skills, and then 12 enrolments in General English, all of which are recorded as ‘Finished’. The Tribunal explained to the applicant that this information is relevant because it indicates that the applicant was not enrolled in a registered course of study after 22 November 2019, and therefore may not have complied with the enrolment condition of his Student visa.
As noted, the applicant requested an extension of time to obtain another representative to respond to the information, however for the reasons set out above, the Tribunal did not grant the request for an extension. The applicant did not comment or respond to the information by 12 August 2022.
According to the information provided by the applicant in the written submission provided on 26 April 2022, the applicant maintained enrolments in various English courses, but concedes that he was not enrolled in a registered course for a ‘considerable period of time.’ The submission suggests that he was ready to enrol in an Aviation course in early 2020, but ‘withdrew’ when the COVID-19 pandemic commenced. There is no information contained in the applicant’s PRISMS record to indicate that the applicant was enrolled in an Aviation course in early 2020 or that he withdrew from such a course at that time. The information from his PRISMS record indicates that the last registered course the applicant was enrolled in was a short course in General English, which ended on 22 November 2019. The applicant has not provided any confirmations of enrolment (CoE) for any courses which commenced after 22 November 2019 and he did not respond to the information contained in the s.359A invitation within the prescribed period. In the absence of any response from the applicant regarding these particulars or any other supporting evidence as to enrolment, the Tribunal prefers to accept the information in the applicant’s PRISMS record. There is no information before the Tribunal to indicate that the applicant was enrolled in a registered course of study after 22 November 2019.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 22 November 2019 until 11 March 2022, when the Student visa was cancelled. Accordingly, the applicant has not complied with condition 8202(2)(a).
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. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.
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
The applicant arrived in Australia to undertake the Standard Plus Foundation Program and a Bachelor of Aviation at UNSW. According to the applicant’s written submission, the applicant acknowledges that he has not been enrolled in a course of study for a ‘considerable period of time’, but still wishes to enrol in and complete a Diploma of Aviation, and wishes to be afforded one final opportunity to do so.
While I consider that the applicant’s purpose when he first arrived in Australia may have been to enrol in and complete a course in Aviation, there is little supporting evidence to support his claim that this remains his purpose for remaining in Australia. As noted above, the applicant did not commence the Bachelor of Aviation (Flying) at UNSW, the most recent enrolment in which was cancelled on 12 October 2017 for non-commencement of studies. From December 2017 until 22 November 2019 the applicant was enrolled in a series of short ELICOS courses, including 12 enrolments in General English. There is no evidence that he has held a CoE in a registered course of study since 22 November 2019, which is now a period of over 2 years and 10 months. There is no evidence before the Tribunal to indicate that he has a current CoE in a registered course of study. While I have had regard to the written submissions which indicate that the applicant sought advice regarding his options for obtaining pilot qualifications and sat the Australian Wings Academy test in August 2017, I note that according to this submission the applicant ‘failed’ this test. The applicant has provided the Tribunal with a copy of this test, which indicates under the heading of ‘Overall Suitability’ that the applicant showed weaknesses that may impact on training progression in the areas of Learning and Physical Skills.
I have also considered the letter from Airways Aviation, which indicates that the applicant was accepted to a Diploma of Aviation from 22 October 2018 to 2 October 2019. I note however that the applicant did not enrol in this course, and note his stated reasons for not taking up this offer.

Having considered the applicant’s enrolment history, I have concerns regarding the applicant’s purpose for remaining in Australia. While he claims in the written submission that he still wishes to pursue entry into the Australian Wings Academy, there is no evidence of any applications or attempts to enrol in this course, other than the ADAPT Online Report dated 24 August 2017. I also note that approximately four years have passed since the applicant received the letter of offer from Aviation Airways (dated 17 August 2018), and he has provided no supporting evidence of attempts to apply for or enrol in an aviation course since then.
I have considered the applicant’s claim that he was ready to enrol in this course in early 2020, but had to ‘withdraw’ because of COVID-19. This is not supported by the applicant’s PRISMS record, which indicates that the applicant was enrolled in courses in the ELICOS sector from December 2017 until November 2019, after which he has no further enrolments. The applicant has not explained why he enrolled in courses within the ELICOS sector for a period of almost two years, rather than courses in his chosen field of study. While I have considered the potential impact of the COVID-19 pandemic on the applicant’s ability to enrol in a course of study from March 2020, I do not find this a sufficient explanation for the applicant’s failure to enrol in any courses of study from 22 November 2019 until the present.
The applicant has not provided evidence of compelling reasons for remaining in Australia. As noted, he provided evidence of his acceptance into a Diploma of Aviation in 2018, which he was scheduled to complete in October 2019 had he chosen to enrol in this course. I also note that the applicant’s Student visa was cancelled on 15 March 2022, four days before it was due to expire. I note that the Student visa was granted for a period of approximately five years, which allowed the applicant time to complete a Foundation Program and a Bachelor degree. Having considered the applicant’s enrolment history as a whole, as well as the information provided by the applicant about his attempts to obtain pilot qualifications, I find that the applicant has had sufficient time to obtain a Diploma of Aviation if that remains his primary purpose for remaining in Australia. I give this consideration weight in favour of cancelling the visa.
The extent of compliance with visa conditions
The applicant’s PRISMS record indicates that the applicant was last enrolled in a registered course of study on 22 November 2019, when his last enrolment in General English ended. He was not enrolled as at the date the delegate’s decision on 11 March 2022. This is a period of over 2 years and 3 months, which the Tribunal considers is a significant length of time. In his written submissions the applicant concedes he has not been enrolled in a registered course of study for a ‘considerable’ period of time.
There is no information to indicate that the applicant has been non-compliant with other conditions of the visa, such as any work limitations. While I give this some weight in the applicant’s favour, looking at the applicant’s compliance with visa conditions overall. I consider the extent of the breach of the enrolment condition to be significant and give this consideration weight in favour of cancelling the visa.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
In his written submission, the applicant did not specifically address the hardship that may be caused to him or his family if the Student visa is cancelled. The applicant did however indicate that he wishes to obtain pilot qualifications and still wishes to enrol in a Diploma of Aviation and be given one final opportunity to do so. The applicant did not provide a response to the NOICC issued by the Department.
I accept that the cancellation may create some hardship for the applicant, including difficulties in him achieving his chosen career path in the aviation industry, however I note that the applicant has not been enrolled in a course in Aviation since his enrolment in the Bachelor of Aviation was cancelled in October 2017. I also accept that the cancellation of the visa may cause some financial, psychological and emotional hardship for the applicant. I accept that the cancellation may also create some hardship for the applicant’s parents, who may have invested in his education and stay in Australia since 2017. I give this consideration some weight against cancelling the visa.
The circumstances in which the ground of cancellation arose
The applicant concedes that he did not complete the Foundation Program at UNSW and did not commence the Bachelor of Aviation at UNSW. The applicant has not explained why he did not continue with these courses and has not provided any academic transcripts or other documents issued by UNSW in relation to his course progress. In his written submissions, the applicant claims that he sought advice about alternative options for pursuing pilot qualifications. In this regard the applicant has provided a copy of the ADAPT test results that he sat for in August 2017 and a letter of offer from Airways Aviation, dated 17 August 2018. The applicant concedes that he failed the ADAPT test. The applicant did not take up the offer of enrolment from Airways Aviation for the Diploma of Aviation because it would have involved moving to Queensland, where he would have been away from his uncle’s support. The applicant instead chose to enrol in a series of short English certificate courses within the ELICOS sector from December 2017 to 22 November 2019. The breach of the enrolment condition occurred as a result of the applicant failing to maintain enrolment in a registered course of study after his final enrolment in General English ended on 22 November 2019. The applicant claims that he was ready in early 2020 to enrol in another Aviation course, but had to ‘withdraw’ when the COVID-19 pandemic commenced. He claims that the Australian Wings Academy advised him the course was suspended. The applicant has however provided no evidence to indicate that he was successful in being accepted into the Australian Wings Academy, which is of concern given the only supporting document he has provided in relation to this course is the ADAPT test from 2017, which he concedes he failed. As noted, there is nothing in the applicant’s PRISMS record to indicate that he was enrolled in any Diploma course with Australian Wings Academy but had to withdraw.
While I have taken into account the difficulties which the COVID-19 pandemic may have caused from March 2020 onwards, including the suspension of some courses, as well as requiring some courses to be delivered online, I do not accept that the applicant has provided a complete explanation for remaining unenrolled from 22 November 2019 until the time his visa was cancelled in March 2022. The applicant did not respond to the s.359A invitation from the Tribunal within the prescribed timeframe and did not respond to the NOICC issued by the Department. I do not consider the explanation provided in the written submissions dated 26 April 2022 provides a sufficient explanation for the circumstances in which the ground for the breach occurred. There is nothing to indicate that the circumstances in which the ground for cancellation occurred were beyond the applicant’s control. I give this consideration weight in favour of cancelling the visa.
Past and present behaviour of the visa holder towards the department
The applicant has not provided any submissions regarding this factor in his written submissions provided on 26 April 2022. Perusal of the delegate’s file indicates that the applicant did not respond to the NOICC issued by the Department. There is nothing in the Department file which indicates that the applicant has been uncooperative with the Department. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Whether there would be consequential cancellations under s 140
The applicant did not provide any submissions regarding this factor in his written submissions provided on 26 April 2022. There is nothing in the Tribunal file or Department file to indicate that there are persons whose visas would, or may, be cancelled under s.140 of the Act as a consequence of the applicant’s visa being cancelled. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189 of the Act, however it notes that he could apply for a Bridging visa in order to settle his affairs in Australia. The applicant would need to seek advice regarding his immigration status. The Tribunal is mindful that a visa cancellation could mean the applicant might face difficulties in being granted further visas in Australia, and that he could also be subject to a three-year exclusion period unless he meets relevant Public Interest Criterion.
The applicant has not provided any submissions in relation to this consideration in his written submission to the Tribunal in April 2022. I give this condition no weight for or against cancelling the visa.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is no evidence that the applicant has any children. The Tribunal weighs this factor neither in favour nor against cancelling the visa.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Student visa is a temporary visa and this consideration is not applicable.
Any other relevant matters
The applicant has not provided any evidence or submissions regarding other relevant matters. The Tribunal weighs this neither in favour nor against cancelling the visa.
Conclusion
The Tribunal has given weight to several factors in favour of cancelling the visa, including the applicant’s purpose for remaining in Australia, the extent of the breach and the circumstances in which the ground of cancellation arose. These outweigh those factors where the Tribunal gave some weight against cancelling the visa or where the Tribunal has given a neutral weighting.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Frank Russo
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.

[2022] AATA 5041

16 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice