NAVARRO ALTAMIRANO (Migration)

NAVARRO ALTAMIRANO (Migration) [2020] AATA 168 (22 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms KELLY FARELLA NAVARRO ALTAMIRANO
CASE NUMBER:  1803885
HOME AFFAIRS REFERENCE(S):           BCC2017/3549144
MEMBER:Wendy Banfield
DATE:22 January 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 22 January 2020 at 3:38pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was not a genuine student – applicant failed to maintain enrolment in a full time registered course – breached condition 8202 – applicant had applied for a Partner visa –relationship breakdown – mental health issues – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 359,
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 8 February 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).
The delegate cancelled the visa on the basis that the applicant had not complied with the terms of her Student visa which required her to maintain enrolment in a course of study. The applicant had been enrolled in a Diploma of Early Childhood Education and Care but that enrolment was cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Background
The applicant is a citizen of Peru and is currently 22 years old. She came to Australia on 7 January 2015 and has remained onshore since then. The applicant has completed courses in English and in Early Childhood Education and Care. She applied for a Partner visa in December 2016 based on a claimed de facto relationship with an Australian citizen. The Partner visa application was later withdrawn. At the time of the hearing the applicant was enrolled and studying a Diploma of Business with plans to undertake a Bachelor of Nursing thereafter.
Prior to and after the hearing, the applicant submitted the following evidence:
·     Department’s decision record dated 8 February 2018;
·     Email from the applicant’s representative dated 1 February 2018 advising the applicant is enrolled and studying at University of Canberra (UC);
·     Copy of the National Police Certificate for the ex-partner of the applicant;
·     Email correspondence between UC and the applicant from October and November 2019;
·     Email from CIT to the applicant dated 17 May 2017;
·     Applicant’s notice of withdrawal of a Partner visa dated 12 November 2019;
·     Written statement by the applicant dated 15 November 2019;
·     Psychologist’s report dated 11 November 2019 (translated from Spanish)[1];
·     Confirmation of Enrolment (COE) for English course at UC;
·     Statutory declaration of Erick Angelo Gonzales Rodriguez dated 14 November 2019;
·     Background information about the applicant (undated);
·     Letter from UC dated 17 November 2019 confirming the applicant’s status as a student;
·     Payment advice statements in the name of the applicant from Volanne Pty Ltd;
·     Medical certificate for the applicant dated 9 December 2019;
·     Applicant’s written statement received on 12 December 2019.
[1] English translation (13 November 2019) of a report by Psychologist Sara Refulio Avila, Los Olivos, Peru, dated 11 November 2019 indicating the date of assessment to be ‘January 2017’.
The Tribunal has also taken into account in this decision the applicant’s statement in response to the Department’s Notice of Intention to Consider Cancellation (NOICC).
The applicant appeared before the Tribunal on 18 November 2019 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister Ms Emely Navarro Altamirano and her father, Miguel Navarro Rodriguez. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.
Evidence of the visa applicant
The applicant advised she came to Australia in January 2015. She first came to undertake an English course and then met the requirements to study Early Childhood Education. Regarding career plans, the applicant said she wanted to become a nurse and work with elderly people. The applicant completed a Certificate III and had been enrolled in a Diploma of Early Childhood Education. She withdrew from studying when she began a relationship with her ex-partner. According to the applicant her ex-partner was possessive of her time. She said they applied for a Partner visa on 13 December 2016 after being in a de facto relationship for one year.
The applicant advised she was not enrolled between March and October 2017 because she held a Bridging visa, as well as her Student visa. The applicant said her ex-partner told her she did not need to continue studying since they had applied for a Partner visa. The applicant declared she met her former partner at a bar in October 2015. Instead of studying, she and her ex-partner had planned to travel including to Peru to meet her family. The Tribunal asked the applicant what she was planning to do in her career after she discontinued studying. She said she had not thought about it because she was involved in the relationship.
The Tribunal put to the applicant the Department’s findings that she had not been enrolled to study between March and October 2017 and it appeared there had been grounds to cancel her Student visa. The applicant stated she had applied for a Partner visa but had known she was required to study while holding a Student visa. It was conceded the Department did have cause to cancel her visa. The applicant then said that after applying for a Partner visa she had not expected the relationship to breakdown.
The Tribunal accepted that the purpose of the visa holder’s travel and stay in Australia was to study. Regarding any compelling need to remain in Australia, the applicant said after her Partner visa with was withdrawn she enrolled at the University of Canberra (UC) and completed an English course. She said she was currently studying a Diploma of Business and would then be able to study a Bachelor of Nursing. The Tribunal asked the applicant whether she was able to study nursing in Peru and she said the quality of education is lower. According to the applicant after she completes her studies she would like to go to Europe or India where nursing is in demand. She is only planning to return to Peru to visit family but would like to work in Europe.
The applicant claimed she had complied with all other visa conditions. She was asked about the type of work she had done in Australia and she said waitressing and functions as well as housekeeping. The applicant was asked about any hardship that would result from her visa being cancelled. She said she would be very depressed because her sister is here and she came to obtain Australian qualifications. The applicant said she was very young when she arrived in Australia and when she started a relationship with her former partner.
The Tribunal noted the applicant had responded to the Department’s NOICC letter. She advised no one else held a visa that would be affected by her visa being cancelled. The Tribunal referred the applicant to the legal consequences of her visa being cancelled. In this regard the applicant submitted she had been very young when she applied for a Partner visa and had “let her guard down”. It was claimed her former partner was possessive and controlling and prevented her from going out. She said she was in a bad situation emotionally and her five years in Australia would be wasted if her visa is cancelled. The applicant said she was a student who fell in love and was influenced to stop studying and do things she should not have done. According to the applicant her former partner was hiding a police background. She said she has since grown up and will successfully complete her Diploma course.
The Tribunal put information to the applicant under s.359AA of the Migration Act and gave her an opportunity to comment or respond, or request additional time to comment or respond. The Tribunal referred the applicant to information received from a member of the public that may indicate she is not a genuine student and is seeking to remain in Australia. The Tribunal advised the information received was that while in Australia the applicant has been working more than 30 hours per week. The applicant asked for time to respond to the information. The Tribunal also put to the applicant that information received claimed she had entered into a bogus relationship in order to apply for a Partner visa. The Tribunal then put to the applicant that the Provider Registration and International Student Management (PRISMS) record showed she had only completed courses in English and her other courses were cancelled. The applicant asked for a brief adjournment of the hearing to respond which the Tribunal allowed. After the adjournment, the applicant said her former partner was upset the relationship finished when she learnt about his bad police check and she believed he or his friends may have made the claims against her in retaliation. She said her former partner was harassing her and wanted a second chance however the relationship was toxic.
The applicant’s representative said after the applicant sought to return to study, she could not go back to CIT but has since been undertaking a Diploma of Business which she expects to complete in February 2020. She then has a letter of offer from UC to study Nursing in 2020. The applicant explained she does not have a COE from UC because she does not have a visa yet.
Witness evidence – Emely Lisbeth Navarro Altamirano
The witness, who is the sister of the applicant, was invited to make a submission in support of the application for review. Emely Altamirano said her sister was in a genuine relationship with her former partner and were together for a year and a half. They met in 2015 and lodged a Partner visa application in 2016. Emely Altamirano then related the background to the applicant’s relationship. The Tribunal asked her to explain the relevance to the primary issue, which was that the applicant did not study during the relevant period. The witness replied that she was initially responsible for her sister due to her being under 18 and explained the applicant’s study history in Australia. She said it was during this time the applicant met her ex-partner. The Tribunal put to the witness that as her sister’s guardian, she would have been aware of the need to comply with the terms of the Student visa. Emely Altamirano claimed that during her sister’s enrolment in a Certificate IV course, she no longer wanted to attend because she was with her partner.
Emely Altamirano said she did not agree with her sister applying for a Partner visa. However, she said the applicant is in the situation where she wants to return to study and complete a course in Nursing. The Tribunal put to the witness that if the applicant wishes to work in the UK or Europe, she could study there. Emely Altamirano agreed but said they have family in Australia on her father’s side and she thought the applicant should at least complete her Diploma and Advanced Diploma here. She referred again to the applicant’s relationship with her former partner and the adverse influence he had on her. Emely Altamirano asked about the allegations received by the Department about her sister and whether it was recent. The Tribunal explained it was not particularly recent and had been raised to give the applicant an opportunity to respond.
It was submitted the former relationship affected the applicant emotionally and while Emely Altamirano said she understands people come to Australia to do a course and have to go back, at the same time they spent so much money in travel from Peru to Australia. The witness felt it would be a waste if her sister goes back to her country and submitted she should be given a second chance by having her Student visa reinstated. Emely Altamirano said after that, she can go anywhere in the world and will have Australian qualifications that are recognised. She referred to their mother being a retired nurse and the applicant having worked hard to learn English. In conclusion Emely Altamirano said it would not be fair if the Student visa is cancelled.
Witness evidence – Miguel Emerson Navarro Rodriguez
Mr Rodriguez is the father of the applicant. He said his daughter came to Australia to study and improve; however, the former partner appeared. The witness said he is a retired policeman and had come to visit his daughters but saw the trouble the applicant was in because her relationship did not go well. He advised the applicant’s studies stopped because of her ex-partner who had a bad police record and things happened to her because of him. Mr Rodriguez said after getting advice she wanted to continue her studies but could not register anywhere however she still wants to finish her studies. He wanted the Tribunal to consider the applicant’s case because he was sorry as a father to see what his daughter is going through. He said he wants her to finish her studies and go back to Peru.
Representative’s submission
Mr Godkin advised he became involved in the case when a Partner visa application was lodged and said the relationship seemed genuine to him. After the application was lodged there was trouble getting a police clearance from the sponsor. Mr Godwin said they initiated a police clearance themselves and when it came, it was three pages long. He said he was alarmed and advised the applicant he had concerns for her safety. The Tribunal asked why there was such a concern and it was submitted the former partner is a violent man with numerous past offences. It was claimed the unfortunate thing for the applicant was that the Partner visa had to be withdrawn. Because she still had a Student visa, the applicant tried to go back to study and CIT initially offered her a place but the dates were wrong and she could not be taken on as a student. The applicant then approached UC to get her English to an appropriate level and has been doing a pre-requisite for nursing which is a Diploma of Business ending in February 2020. The representative said the applicant will be able to do a Bachelor of Nursing when she had a visa again. It was submitted the applicant has been through depression and turmoil but is on the right track and has accomplished things. Mr Godkin said he believes she will complete a degree if given the opportunity.
Further evidence
In reference to the applicant’s studies in Childcare at CIT, Emely Altamirano made submissions about her sister’s enrolment to undertake Certificates III and IV and Diploma courses. She claimed the applicant was harassed for payment but had been given incorrect dates and was unable to study further courses. It was submitted this amounted to negligence by the education provider. Emely Altamirano said she believed CIT should have reported the matter to immigration then and the applicant given the opportunity to explain her situation to the Departmental delegate.
The Tribunal put to the applicant that according to PRISMS, her enrolment in a Diploma of Childcare was cancelled because “student notifies cessation of studies” and it was not clear what the witness, Emely Altamirano was claiming. The Tribunal was referred to an email from CIT that had been submitted in evidence.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·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 Department cancelled the applicant’s Student visa because she was not enrolled in a registered course from 23 March 2017 to 10 October 2017. In her evidence at the Tribunal hearing the applicant agreed she had not been enrolled during the relevant period and there were grounds to cancel the Student visa.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2)(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 was granted the visa which is the subject of this review on 23 October 2015. She was enrolled to study English and childcare and has completed courses in those subjects since the visa was granted. On the evidence before it, the Tribunal is satisfied that the applicant’s original intention to travel to and stay in Australia was to study.
During the Tribunal hearing the applicant was invited to make submissions regarding any compelling need to remain in Australia. The applicant submitted she has resumed her studies after her Partner visa application was withdrawn, she is currently studying a Diploma of Business and wants to go on to study a Bachelor of Nursing. Her oral evidence at the hearing was that she would then consider going to Europe or India where nursing is in demand. The Tribunal accepts the applicant would like to remain in Australia as a Student but she has other study options available to her. The applicants parents continue to reside in Peru and Emely Altamirano gave evidence that their mother is a retired nurse. There appears to be no reason why the applicant could not study nursing in her home country or elsewhere.
The Tribunal finds the applicant has not demonstrated a powerful or convincing reason for needing to stay. For these reasons, the Tribunal is not satisfied the applicant has a compelling need to remain in Australia.
· the extent of compliance with visa conditions
The Tribunal has evidence before it in the form of unsubstantiated allegations that the applicant has not complied with other visa conditions. The informant alleges the applicant was not a genuine student and has been working more than the permitted hours allowed by her visa conditions. When this information was put to the applicant for comment, she said she believed her former partner or his friends may have made false allegations about her in retaliation for the relationship ending. In light of the allegations having been made anonymously without supporting evidence, and the applicant’s response, the Tribunal places no weight on this issue in deciding whether to exercise the discretion to cancel her Student visa. However, the Tribunal finds failure to maintain enrolment and engage in a course of study is a fundamental breach of Student visa conditions and weighs against the applicant in this case.
· degree of hardship that may be caused (financial, psychological, emotional or other hardship)

During the course of the hearing the Tribunal discussed with the applicant, any hardship that may arise as a result of her visa being cancelled. The applicant advised she would be very depressed because her sister is in Australia and she wanted to obtain Australian qualifications. The applicant explained she had been very young when she first arrived in Australia as well as when she started a relationship with her former partner. Evidence was provided that the applicant has suffered depression and stress from her situation, both during and after the relationship with the former partner.
The applicant’s sister Emely Altamirano claimed the applicant’s relationship had affected her emotionally. She also explained they had spent money for the applicant to travel from Peru to Australia and it would be a waste if her sister returns to their home country. Emely Altamirano said the applicant had worked hard to learn English during her time in Australia and it would not be fair if her Student visa is cancelled. The Tribunal accepts there would be a moderate degree of hardship caused as a result of the applicant’s visa being cancelled and places some weight in her favour on this consideration.
The Tribunal is mindful that the cancellation of the visa means the applicant could become an unlawful non-citizen liable for detention and removal from Australia. Moreover, the applicant would be subject to s.48 of the Migration Act and consequently would have limited options to apply for further visas in Australia. However, those are the intended consequences of the legislation and in the applicant’s case are not reasons why the visa should not be cancelled.
· circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The applicant’s Student visa was cancelled on 8 February 2018 because she remained in Australia as the holder of a Student visa but did not continue her studies for approximately seven (7) months. The applicant had applied for a Partner visa on 13 December 2016 on the basis of a de facto relationship with an Australian citizen and discontinued her studies. According to the evidence of the applicant and her witnesses, the ex-partner was controlling and discouraged her from continuing to study. However the applicant and her sister Emely Altamirano both conceded they had been aware the applicant was required to maintain enrolment and study while holding a Student visa.
The circumstances in which the grounds for cancellation arose were explained by the applicant and her witnesses as being due to the influence of the applicant’s former partner but it is clear the applicant made the choice to discontinue her studies once she had applied for a Partner visa which if successful, would have allowed her to remain in Australia first as a temporary resident and then permanently. Despite what was described as a difficult, controlling relationship, the applicant’s Partner visa was only withdrawn once she became aware of the sponsor’s criminal history. This information came to light when the sponsor’s National Police Certificate was obtained by the applicant’s representative. In her notice of withdrawal of application dated 3 October 2017 the applicant advised: “Our relationship has broken down only in recent times when he lost his job and became depressed. It was around the same time that the department requested his AFP Police report… I was shocked to see his past criminal record… it was only then that we separated and I lived separately for my personal safety.” The Department requires police checks from sponsors for the safety and security of visa applicants. If a sponsor has convictions for a relevant offence and a significant criminal record the Department must refuse the visa, unless they assess that it is reasonable not to. It is likely in the applicant’s case that the Partner visa would have been refused. The applicant chose to withdraw her Partner visa application and in resumed studying ELICOS English at UC before transferring to a Diploma of Business.
The applicant provided a psychologist’s report outlining the relationship with her ex-partner and the adverse emotional effect this had on her. The report is an English translation of a Spanish document from a psychologist, Sara Refulio Avila in Peru that the applicant is said to have consulted online. The original Spanish version was not provided. The report refers to “Date of Assessments” as being “January 2017” but this may be an error as the report itself is dated 11 November 2019 and refers to events that occurred after January 2017 such as the applicant’s current Diploma of Business course at UC. There is no indication how many sessions took place or how they were conducted but the terminology of the report suggests there was more than one consultation. The report is primarily a summary of the applicant’s claims about her circumstances in Australia regarding her studies, her relationship with her former partner and associated difficulties. It concludes by stating that events since the applicant arrived in Australia have caused sadness and anxiety and have “placed her mental health at risk”. It makes a number of recommendations including “Therapeutic Assessment and Treatment in Australia” but there is no evidence the applicant has pursued this. The report does not provide a diagnosis or opinion regarding the applicant’s mental health and for these reasons the Tribunal has taken the content of the report into account as evidence of the applicant’s claims but does not place weight on it as an expert witness report regarding her mental health in 2017 or currently.
The psychologist’s report also refers to the applicant having been emotionally affected by the death of her great grandmother and it reports the applicant’s claims that she was “subjected to bullying” by staff at CIT. Although the witness Emely Altamirano stated during the hearing that the applicant was harassed for payment by CIT, the email evidence from the CIT Director that the Tribunal was referred to only states that the dates for course delivery in a Letter of Offer were incorrect and the applicant is not required to pay tuition fees for semester 1 2017. It appears this email was in response to correspondence dated 12 May 2017 from Emely Altermirano in an email titled ‘Kelly Navarro CIT 193796 URGENT’ however, the substance of that email was not provided to the Tribunal. While the Tribunal is prepared to accept the applicant may have been affected by the death of a relative, there is no evidence she sought compassionate leave from her studies for that reason. Furthermore, the Tribunal does not accept CIT staff bullied the applicant or were negligent or contributed in any way to the applicant’s decisions regarding her studies.
The applicant’s evidence was that she was involved in a controlling and difficult relationship that broke down but the Tribunal finds this did not lead to the circumstances in which ground of cancellation arose. The grounds for cancellation arose during the relationship when, according to the applicant’s evidence, she decided to put her focus and energy into her relationship rather than her studies. It appears the majority of her stress and emotional difficulties were due to her situation following the cancellation of her Student visa. The statutory declaration provided by Erick Rodriguez dated 14 November 2019 supports this. Mr Rodriguez refers to the difficult relationship the applicant had with her former partner who was emotional following the break down. He states: “Kelly wanted to go back on her student visa after withdrawing from her spouse visa when she was notified that her student visa was cancelled. Kelly was very overwhelmed, confused with her situation and felt powerless… she mentioned to me that she was suffering from sleep deprivation, anxiety and depression.”
Having considered the evidence, the Tribunal does not consider the circumstances in which the grounds for cancellation arose were beyond the applicant’s control. That is, the applicant’s failure to study in breach of her Student visa conditions. It was open to her to seek advice about her situation or change her visa status to ensure she did not breach conditions but there is no evidence she did so. Therefore, the Tribunal places limited weight on the circumstances in which the ground for cancellation occurred.
· past and present behaviour of the visa holder towards the department
There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department. The applicant provided a response to the Departments NOICC letter and the Tribunal has given the applicant some weight in this regard.
· whether there would be consequential cancellations under s.140
There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
· whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The cancellation of the visa means that the applicant could potentially become an unlawful non-citizen liable for detention and removal from Australia. The applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. However, those are the intended consequences of the legislation and are not sufficient reason for the applicant’s visa to not be cancelled.
· 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 evidence before the Tribunal that the cancellation of the applicant’s visa would result in Australia breaching any international obligations. On the evidence submitted the applicant does not have any children.
· if it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
The Subclass 572 Student Visa is not a permanent visa.
· any other relevant matters
The Tribunal took into account the applicant’s and witness’ submissions regarding the relationship with a former partner and the claimed effect this had on her psychologically. Clearly the applicant regrets the relationship and her decision to stop studying. However, it appears the applicant only recommenced her studies because the relationship with her sponsor ended and the Partner visa application was withdrawn. In her evidence at the hearing the applicant said she had not thought about her career after she discontinued studying because she was involved in a relationship. The applicant said at the time, instead of studying she and her ex-partner were planning to travel including visiting Peru to meet her family. The applicant conceded she had been aware she was still required to study while holding a Student visa; however, she did not do so. The Tribunal finds these issues weigh against the applicant in considering whether to exercise the discretion to cancel her visa.
University of Canberra
The applicant gave evidence that she was enrolled and studying a Diploma of Business at UC but did not have a COE that is usually issued by the education provider. The Tribunal contacted the university who were able to confirm the applicant was enrolled and studying as she claimed and that a COE had not been issued due to her visa status. UC administration also provided the Tribunal with a copy of the applicant’s academic transcript for the Diploma course dated 3 December 2019 which shows she had failed some of her subjects. UC advised that the applicant may be required to study for an extra term in 2020 in order to complete the course. The Tribunal has not placed any adverse weight on the applicant’s academic record at UC in its decision and has only relied on the information confirming the applicant is in fact enrolled and studying.
Conclusion
The Tribunal has considered the applicant’s circumstances individually and cumulatively. Although the Tribunal finds there are some aspects in the applicant’s case that weigh somewhat in her favour, on balance, the Tribunal is satisfied that the majority of considerations weigh against the applicant. The Tribunal considers the length of time the applicant spent in Australia in breach of her Student visa conditions to be significant. The Tribunal is not satisfied the issues encountered by the applicant are sufficient reason for the visa not to be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Wendy Banfield
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.

[2020] AATA 168

22 January 2020

Key Legal Topics

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Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Natural Justice