Nguyen (Migration)

Nguyen (Migration) [2020] AATA 4889 (20 August 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Thi Buoi Nguyen
CASE NUMBER:  2003046
HOME AFFAIRS REFERENCE(S):          BCC2019/4965059
MEMBER:Michael Biviano
DATE:20 August 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 20 August 2020 at 5:20pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in registered course – study history – changes of subject area – completion of diploma and near-completion of advanced diploma – pregnancy, relationship with baby’s father and health – enrolment at lower level – study difficulties – baby’s health – enrolment at original level after receiving department’s notice – best interests of Australian citizen baby – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 February 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 delegate cancelled the visa on the basis that the applicant had not complied with subclause (2)(a) of condition 8202 of her visa as she was not enrolled in a registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Prior to the hearing, the applicant in her Response to the Hearing Invitation filed with the Tribunal sought that the hearing of her application be adjourned until after the COVID-19 restrictions were over, because it was difficult to have a hearing at home when she could not send her baby to childcare. The Tribunal considered the request but refused to postpone the hearing for an indefinite period of time, when the applicant could make arrangements for her young child to be cared for by her family or have her child with her in the hearing.
The applicant appeared before the Tribunal on 27 April 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
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:
·must be enrolled in a full-time registered course: 8202(2)(a);
·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: 8202(2)(b);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course for the period from 17 September 2018 to 14 January 2020.
The Decision Record of the delegate of the Department of Home Affairs on 13 February 2020, which was provided to the Tribunal by the applicant, confirms the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa which was granted on 25 July 2018 and the reasons for the cancellation of the visa (Decision Record).
The applicant came to Australia on 27 April 2013 pursuant to a Student (Subclass TU 573) visa to undertake a suite of courses including English courses, a Diploma of Beauty Therapy and a Bachelor’s degree also majoring in Beauty Therapy.
The applicant gave evidence that she first had to undertake a 25-week English course, but she had difficulties with her studies. She completed an English course, and changed courses to undertake a Certificate III and IV in English at Ozford College. She completed several English courses.
She then claimed that in 2015 she commenced studying the Diploma of Beauty Therapy at Baxter Institute. However a few months into study, she came to understand that the Beauty Therapy course would not assist her in establishing a good business.
She then gave evidence that in 2015 she commenced studying a Diploma of Business at Dalton College, which she completed on 1 August 2016. The applicant tendered to the Tribunal the Diploma of Business she obtained from Dalton College. The applicant gave evidence that she then enrolled in an Advanced Diploma of Business. However while studying that course the applicant discovered that she was pregnant. She gave evidence that she discovered that she was pregnant on 20 April 2017.
She claims that as a consequence of becoming pregnant she suffered from morning sickness and diabetes. She claims that she was stressed about her relationship with the baby’s father and she did not wish to acknowledge the baby’s father. Further the Decision Record states that the applicant due to morning sickness, weight loss and exhaustion with the pregnancy, decided to defer her studies in the Advanced Diploma of Business.
The applicant gave evidence that she ceased her studies in August 2017. She claims that she was near completion of the Advanced Diploma course. The applicant did not return to complete the Advanced Diploma of Business.
The applicant gave birth to her baby on 11 February 2018. The Decision Record confirms that the applicant’s health recovered after the birth of her child.
The applicant enrolled in a Certificate IV in Accounting and a Diploma of Accounting at Sydney Metro College in March 2018 (Accounting Courses). The courses were to commence in March 2018.
The applicant gave evidence that after the birth of her child, she had difficulties studying as a single mother. She claimed her child had numerous problems which meant that she could not study and had to provide care to her child. She claimed that her daughter had the following problems:-
a.The Decision Record confirms that her child’s health was poor as her child had diarrhoea and persistent vomiting;
b.She was frequently sick and had digestive issues;
c.She had problems with her hip and leg bones, which had an abnormality;
d.She had diabetes;
e.She often had a runny nose; and
f.She has eczema.
The applicant claimed that she was a single mother and she had to care for her child. She claimed that she could not leave her child with childcare due to the child’s health issues and there was no-one to care for her child.
The applicant claimed that she was unable to get medical treatment for her child due to her father having the Medicare card and he did not make it available for his daughter.
The applicant claimed that all the interruptions prevented her from studying and she stopped studying the Accounting Courses.
The applicant confirmed that her enrolment in the Accounting Courses was cancelled on 17 September 2018.
On 7 January 2020, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of her visa.
On 14 January 2020, the applicant enrolled in an Advanced Diploma of Leadership and Management. The starting date was 20 January 2020 and the date for completion was 10 October 2021.
The applicant provided the Response to the NOICC. The Response included medical reports for her daughter and a statement from the applicant which provided:-
My name is Nguyen Thi Buoi, I am writing this letter to give explanation for the Notice of Intend to Cancel my student visa which was received on 7th January 2020.
I came to Australia to pursue my academic study since 5/2013, at that time I was just 19 years old. This could be the most difficult time of my life when I had to live independently far away from my family and managed all the stuffs by myself. The eagerness of living in the new country, new environment was quickly defeated by the feeling of lonely, and homesick. I couldn’t count how many nights I was crying alone in my room and scare to tell my parents how lonely I was or how much I miss them as I afraid that they would worry about me. I understood that my parents had to work very hard in order to afford for my study in Australia. Thus, to requite for their effort, I knew that I must try my best to complete the study.
Education history from 2013 - 2016
My initial study plan was Diploma of Beauty Therapy, following by Bachelor of Beauty Therapy in Victoria University. Since I was a little girl, I special interested in making hairs or make-up. I love to play with other girls and pretend that we opened a beauty salon, in which I played as a hairdresser and they were customers. The games playing as a child nurtured me a dream of being hairdresser and make-up artist in the future. Therefore, when deciding to study in Australia, I didn’t hesitate to choose to study specializing in beauty.
With the limitation in English skills, I had to study 20 weeks of English before enrolling to the main course. In order to reduce the financial burden on my parents, I decided to take a part-time in a restaurant with the belief that I could not only earn the small amount of money to support for my daily expense but also improve my English skill by communicating with local people through the jobs. The more interacting with hospitality, the more I realized that hospitality and cooking job was not as the thing as I had known before. With all the curiosity and eagerness, right after the English course in Victoria University, I decided to switch my study from beauty to cookery by enrolling to Certificate III in Commercial Cookery of Ozford.
At the beginning of 2014, I started studying English course and Certificate III in Commercial Cookery in Oxford. After completing Certificate II and III in EAL, I enrolled to the main course of Certificate III in Commercial Cookery at 7/2014. However, after few months of studying, I soon realized that Cookery was not the right choice for me. Practising in the Commercial Kitchen at the high level of pressure, learning how to master in using the knives and studying how to prepare different kind of foods were not my strength. I could not count how many times I cut my fingers, burn my hand and accidentally drop the food on the floors. I had to admitted to my parents that I got the wrong decision, it was not only waste my time but also waste their money. I truly feel ashamed and guilty to my parents.
With lot of encourages form my family, I came back to my initial choice – studying Beauty Therapy. However, as the strict policies of Victoria University, it was difficult for me to come back to the school. I came to see some of education consultant and agencies and was advised that Certificate IV in Beauty Therapy at Baxter Institute could be the most suitable for me at that moment. Therefore, since the beginning of 2015, I started studying this course.
I somehow felt myself a loser as once again I did not finish and drop out the course. The main reason for the incompletion was that I couldn’t focus on my study. The course structure was far different from my expectation as it involved a lot of theories while I prefer to have more practical units. I had to admit that I found no effort of studying Certificate IV of Beauty Therapy in Baxter Institute. I sometimes asked myself about is beauty truly my passion? I was too emerged myself into the hobby and interest when being a child and believed that it could be the future career. In fact, there was a big gap between my actual ability and the specific requirement of the career that I could not fulfill.
I was so stressful because of my study. But coming to Australia is a big chance that I shouldn’t be missed, I didn’t want to give up and make my parents feel down in the dump. They put much effort both of materially and mentally to support for my overseas study, it would be sad if I came home without any qualification. My family and I had long discussion to figure out a way for my problem. They analysed my strength and weakness as well as abilities to get a decent job in Vietnam. After careful consideration, they suggest me to study business. Business is such dynamic field which create millions of jobs in the world. Since Vietnam is in the rapid development of economics, graduates with business degrees has a wide range of selection in this area. Moreover, I’m an active and good at dealing with people. I love to expand my social network with people as well, so I agree business will fit me most.
The period during 2017 and 2019
I came to Dalton to chase for business courses in 2016. Luckily, business is a suitable area for me. I love to learn about business context, strategy, management and so on. It’s amazing to realize business disciplines being present in every problem in life. Thanks to my determination I’ve successfully completed Diploma of business in the end of 2016 then going further with Advanced Diploma of Business course. However, when I was studying this program, I realized that I got pregnant as I suffered quite a lot of pregnancy’s symptoms.
The severe morning sickness, weigh lost, and tiredness exhausted me a lot which later led me to the decision of course deferral in 5/2017. I was so bless with my baby so, I wanted to be in best condition to support for the healthy development of my baby in the abdomen.
In 2/2018, my baby was safely brought into this world and my health came back to normal status, I planned to come back to study by registering to the Certificate IV in Accounting and Diploma of accounting at Sydney Metro College starting on 3/2018. Unfortunately, at that time there were bad signs of my child health since my baby had diarrhea and persistent vomiting.
During 2018 and 2019, my baby was back and forth to Royal Hospital and Sunshine Hospital owing to the problems in her digestive system. I was so worried because her development was not as normal as other babies. The more she grow up, the clearly abnormal her leg-bone’s anatomy shows. The imbalance in her leg-bone’s anatomy raises a serious concern to the doctors which also required us to check and x-ray frequently. Due to this issue I couldn’t go to school but staying at home to take care and monitor my baby.
Furthermore, I am a single mom. The man who I put my love and trust in doesn’t want to take responsibilities for both me and my kid. I was suffering a lot from the break down of our relationship. Being a mom at a very young age is difficult. Being a single mom is more than difficult. I have to struggle everyday to keep me survive so that I can take care of the kid. I am scared of talking about my problems to everyone, especially my parents because I don’t want them to worry for me, to feel ashamed because of having a daughter whose was pregnant without a husband. The pressure of being the single mom, the emotional hardship because of relationship breakdown and the health problem of my kids are all the reasons that make me delay in coming back to study.
Luckily now, when my baby heath is getting better and became stable, and my parents know about my troubles but they still support me, I think that it’s time for me to come back to study. Thus, with much consultation from my parents, I decided to enrol to study the Advanced Diploma of Leadership and Management at St. Peters Institute. At the moment, I am having ECOE form SPI, I will try my best effort to fulfill this course as schedule so that I could return home to support my family. Therefore, would you please give me a chance to fulfill the course.
I very appreciate for your support and look forward to hearing from you soon.
The applicant also submitted her daughter’s birth certificate and Australian passport.
The applicant conceded in evidence that she was not enrolled in a registered course from 18 September 2018 to 14 January 2020, being a period of more than 15 months. By reason of not being enrolled in a registered course for that period of time, she did not meet condition 8202(2)(a) of her visa.
On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course of study for the period from 18 September 2018 to 14 January 2020. Accordingly, the applicant has not complied with condition 8202(2) of her visa. As this was a condition that was attached to her visa, the applicant therefore breached a condition of her visa and the visa is liable to cancellation under s.116(1)(b) of the Act.
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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, and whether the visa holder has a compelling need to travel or to remain in Australia
The applicant gave evidence that she came to Australia to study and undertake the courses as discussed above. She arrived in Australia on 27 April 2013, more than 7 years ago and while in Australia she has completed a Diploma of Business and some English courses.
The number of courses that the applicant has studied and not completed including the Advanced Diploma of Business, the Diploma of Beauty Therapy and the Certificate IV in Accounting call into question whether she was genuinely studying here.
As discussed above, the applicant was enrolled until 17 September 2018.
There is no doubt she came to Australia for the purpose of studying in Australia.
As discussed above, she was not enrolled from 17 September 2018 and she made no attempt to re‑enrol until after she received the NOICC.
The applicant lost her enrolment in the Accounting Courses because she ceased her studies due to matters relating to her young daughter.
However even on the applicant’s own evidence she has not studied extensively since undertaking the Advanced Diploma in Business which she stopped studying in or about August 2017.
While the applicant claims that she could not study because she was a single mother and her child had medical issues, the applicant was not enrolled for a very long period of time of more than 15 months. The applicant could have enrolled and sought to defer her studies until her daughter’s medical condition improved but she did not do so. The applicant gave evidence that she has lived with her aunt and uncle while in Australia. While the applicant claims that she is a single mother she has had the support of her extended family.
The Tribunal finds that during the applicant’s stay over the period of non-enrolment, that by her conduct, the purpose of stay was not to study but look after her child.
The applicant has given evidence that she intends to complete the Advanced Diploma of Leadership and Management which will extend her stay until October 2021, being 8 years and 5 months, which is an extremely long period of time to complete some English courses and a Diploma and an Advanced Diploma.
The applicant’s interrupted studies, incomplete studies together with her long period of non-enrolment are indicative of a student who has not applied herself and does not intend to genuinely study.

Having regard to the applicant’s evidence and her conduct during her stay in Australia, the Tribunal accepts that the applicant has travelled to Australia for the purpose of studying and she intends to study in the future, but her academic outcomes and the period of non-enrolment reveal that she has not stayed here for the purpose of undertaking her studies.
For these reasons, the Tribunal gives these matters marginal weight towards the visa being cancelled.
The extent of compliance with visa conditions
The applicant was not enrolled at the appropriate level course for the period from 18 September 2018 to 14 January 2020, being a period of more than 15 months. Therefore, the applicant has not complied with condition 8202(2)(a) for a long period of time. The non-compliance with condition 8202(2)(a) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts her reasons for non-enrolment or finds she was not responsible for the reason of non-enrolment.
As discussed above, the applicant’s non-compliance with the visa condition relates to her difficulties with her child. Those difficulties appear to derive from the fact that she was a single mother trying to raise her child and study and her child had medical problems. The medical evidence does not bear out that those problems were so severe that the applicant could not study. The medical records submitted that the applicant had a neck eczema rash on her upper neck due to a milk spill in July 2018 and a fine rash on her body and had ingested a wrist chain in August 2018 which she had passed. The medical records also confirm that in October 2019 she had an allergic disorder and in November 2019, the child had a stye, fever and upper respiratory infection.
The applicant has submitted medical evidence dated April 2020 regarding the child having a longer left leg than her right leg and an uneven gait.
Many of the matters and issues raised occurred outside the period of non-enrolment and do not explain why she was not enrolled. While the Tribunal accepts that it would be challenging as a single mother to both study and raise a young child, those challenges are matters of life and do not provide a reasonable explanation for not studying. The applicant has lived with her aunt and uncle while in Australia and had the benefit of their support. The applicant gave evidence that they had paid at least part of her tuition fees.
The Tribunal is not satisfied on the material before it or on the applicant’s evidence that she has a reasonable explanation for her long period of not being enrolled and in breach of a condition of her student visa.
The applicant knew or ought to have known that she was in breach of a condition of her visa.
The Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that she would be in breach of a condition of her visa by not enrolling in a course of study.
The Tribunal finds that apart from the above matters before this Tribunal, there are no other matters raised about the applicant not being compliant with a condition of her visa.
Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level.
The Tribunal finds that the reasons for not being enrolled in a course were the responsibility of the applicant.
Having regard to the long period of the breach and the reasons for losing the enrolment in the Certificate IV in Accounting course, the Tribunal gives these matters substantial weight towards the visa being cancelled.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal asked the applicant if she or other members of her family would suffer hardship if the visa was cancelled.
The applicant gave evidence that if her visa was cancelled, it would cause her and her family a substantial degree of hardship as:
a.It would mean that she would return home without her qualification, which would make it difficult to get a good job;
b.She would return home to Vietnam and live with her family and attempt to finish her studies and get a job.
The Tribunal notes that the applicant has completed a Diploma of Business and English courses, and she will return home to Vietnam with some qualifications if the visa is cancelled.
Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and her family if the visa is cancelled, in the cost of tuition fees that have been paid for the last 7 years, but they are predominantly lost whether she undertakes any further study in Australia.
The Tribunal also finds that there is nothing preventing the applicant studying back at home.
The applicant will be prevented from visiting her aunt and uncle, with whom she is close.
In any event, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.
The Tribunal considers that the above matters give some weight towards the visa not being cancelled.
Circumstances in which ground of cancellation arose
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 gave evidence as to the circumstances that led to the cancellation of the visa as set out above.
Ultimately, the responsibility regarding enrolment rests with the student.
The applicant would have known and been aware that by not being enrolled in a registered course of study and at the appropriate level, she would be in breach of condition 8202(2)(a) and that her visa may be cancelled.
The primary responsibility of the applicant under the visa is to be enrolled in and undertake a registered course at a level appropriate to her visa. The applicant was not enrolled in a registered course for a period of more than 15 months, which is a long period of time to be in breach of a condition of the visa.
The Tribunal has considered the applicant’s explanations for why she was not enrolled in a registered course for such a long period of time and therefore in breach of condition 8202(2)(a). The Tribunal does not accept those circumstances were beyond her control, or circumstances that provided a reasonable explanation for not being enrolled at the appropriate level of course for such a long period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.
Past and present behaviour of the visa holder towards the Department
According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.
Whether there would be consequential cancellations under s.140
The cancellation of the visa will not affect the visa of her daughter, who holds an Australian passport and is an Australian citizen. The applicant gave evidence that her daughter can return to Vietnam with her and stay with her in Vietnam.
In the circumstances, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.
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
If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if she does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so she would need to depart Australia and apply from overseas for most types of further visas.
Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if she has to depart Australia, then that application may not be approved within the next 3 years.
However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.
The applicant gave evidence that if the visa remained cancelled, she would return to Vietnam, and therefore there is no indication that she would become unlawful or be subject to detention.
Accordingly, the Tribunal gives this factor marginal weight towards the visa not being 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
Australia is a signatory to several human rights treaties including the Convention on the Rights of the Child (CRC). The Tribunal has given consideration to the applicant’s child and considered what is in her best interests. One key consideration is the integrity of the family unit. The child was born on 11 February 2018 and is 2 years old and has ordinarily been resident in Australia. Due to her young age and the limited time she has spent in Australia, the Tribunal considers she would experience only marginal hardship readjusting to life outside of Australia back in Vietnam with her mother and grandparents.
The father of the applicant’s child appears to have no contact with the applicant’s child and lives in Western Australia. They are not part of a family unit. If the applicant’s visa is cancelled, then based on the evidence given, the Tribunal finds that the cancellation is unlikely to lead to the breakup of the family unit or separation of family members, as the applicant will remain with her daughter, and the father of the child will remain separate from his daughter in Western Australia.
Accordingly, this case would not lead to a breach of Australia’s international obligations under the CRC in relation to observing the rights of children in Australia and would not lead to a breach of any other international obligations Australia may have.
Given these matters, the Tribunal gives this factor marginal weight towards the visa not being cancelled.
If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.
Any other relevant matters
As there are no other relevant matters identified, the Tribunal gives this factor no weight towards the visa not being cancelled.
Conclusion
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.
Michael Biviano
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 4889

20 August 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Breach

Jurisdiction

Natural Justice

Procedural Fairness

Statutory Construction

Judicial Review