PHAM (Migration)

[2019] AATA 6125

PHAM (Migration) [2019] AATA 6125 (14 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Duong PHAM

CASE NUMBER:  1719090

HOME AFFAIRS REFERENCE(S):          BCC2017/1912301

MEMBER:Frank Russo

DATE:14 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 14 October 2019 at 8:12pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – not enrolled in registered course – English language requirements and university’s administrative procedures – deferral from masters course not reflected in PRSIMS record – discretion to cancel visa – factors for and against cancellation – unable to enrol in higher education while on bridging visa – other study at lower level in interim – one college deregistered – marriage to Australian citizen with two children and application for spouse visa – best interests of the child – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 116(1)(b), 359AA

Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 August 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that he was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant is a 31-year-old Vietnamese national.

4. The applicant appeared before the Tribunal on 9 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.

   Did the applicant comply with Condition 8202?

8. Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

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

9. In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course.

10. In addition to the information provided with his application for review, the applicant provided the Tribunal with copies of the following documents:

    a.Certificates for the English Language Program English for Academic Purposes, issued by UOW College on 19 December 2014, 13 February 2015, 3 April 2015, 15 May 2015, 26 June 2016 and Student Reports issued by UOW College on 24 June 2016 and December 2016;

    b.Confirmation of Enrolment (CoE) for the Diploma of Project Management at Sydney Metro College, commencing on 15 April 2019 and ending on 12 April 2020, issued on 9 April 2019;

    c.A submission from the applicant’s agent, dated 7 October 2019;

    d.Copy of applicant’s Bachelor’s Degree Certificate, issued by Wuhan University on 30 June 2012, together with an English translation and Notarial Certificate;

    e.Copy of applicant’s transcript of results from the University of Wuhan, in Mandarin;

    f.Copy of email from ‘UOW Future Students’ to the applicant, dated 10 March 2017;

    g.Declaration made by Pham Duc Du, dated 5 January 2017, together with certified English translation;

    h.Copies of invoices, issued by Hai Phong City Taxation Department on 16 November 2018 for notification of loss of land use right certificates, together with certified English translations;

    i.Various declarations made by members of the applicant’s family on 12 November 2018 and applications for confirmation dated 8 and 19 November 2018, together with certified English translations;

    j.Certificate of Mental Health of the applicant’s brother, dated 28 November 2016, together with a certified English translation;

    k.Photographs of the applicant with his wife and two children from the marriage to his wife;

    l.Copies of Vietnamese bank account details of the applicant’s parents;

    m.Statement of Attainment of units in the Diploma of Project Management, issued by Sydney Metro College on 12 August 2019; and

    n.During the hearing the applicant provided the following additional documents:

    i.Copy of CoE for the Master of Information and Communication Technology Advanced at University of Wollongong, created on 20 August 2015; and

    ii.Printout of document entitled ‘Rejection of application to renew registration and cancellation of registration as a provider of VET services’ in relation to Nick Hannay Pty Ltd.

11. The Tribunal has had regard to these documents in making its decision. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

12. The applicant gave evidence that he first arrived in Australia in November 2014. The applicant stated that he was enrolled in a Master of Information Communication Technology Advanced at the University of Wollongong, however he first had to undertake a course in English language as his English was not at sufficient level to commence his Masters course. The applicant told the Tribunal that he obtained his undergraduate degree which was a Bachelor of Computer Science at Wuhan University in China. He was enrolled at Wuhan University from 2007 to 2012, and stated that English is his third language.

13. The applicant gave evidence that he did not pass the English Language Program on his first attempt and had to re-enrol in this course several times to obtain a satisfactory mark. The applicant told the Tribunal that he completed the English Language Program at UOW College by the end of 2016.

14. The applicant told the Tribunal that in early 2017 he attempted to enrol in the Master of Information Communication Technology Advanced at the University of Wollongong, but was informed by the university that they needed a copy of his Bachelor degree from Wuhan University. The applicant contacted Wuhan University to obtain a copy, but was told by that university that he had to return to China to obtain a copy. The applicant told the Tribunal that he did this, and he then sought to enrol in the Masters course, but was informed by the University of Wollongong that he needed to wait until the Spring 2017 semester to enrol. The applicant told the Tribunal that he did not enrol in the Masters course as he received the notice of intention to consider cancellation (NOICC) of his Student visa, issued by the Department. His visa was subsequently cancelled.

15. The Tribunal sought to confirm with the applicant whether he accepts that he was not enrolled in a registered course of study between 16 December 2016 and the date of the delegate’s decision on 15 August 2017. The applicant told the Tribunal that he believed he continued to be enrolled as around 17 December 2016 he deposited money with the University of Wollongong for the Masters course. He stated that the university did not accept the money and asked him to obtain a copy of his degree awarded by Wuhan University. He told the Tribunal that in response to this he sent a request to the University of Wollongong to defer his Masters course. He stated that his deferment request was accepted and he believed he was to commence the Masters course in July 2017.

16. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

17. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that it was an accurate reflection of his enrolment history.

18. The Tribunal put to the applicant that his PRISMS record indicated that he had four enrolments in English Language Programs, the last of which ended on 16 December 2016. The Tribunal also put to the applicant that his PRISMS record indicates that he was enrolled in the Master of Information and Communication Technology Advanced from 21 July 2015, but this enrolment was cancelled on 22 October 2015 for ‘Non-commencement of studies’. The Tribunal put to the applicant that according to his PRISMS record, he was not enrolled in another course from 16 December 2016 until the date of the Delegate’s decision, which was made on 16 August 2017. The Tribunal noted the PRISMS record indicates the applicant has been enrolled in courses after the delegate’s decision, but according to this record, he was not enrolled in a registered course for a period of 8 months.

19. The applicant responded that he had made a request for deferment to the University of Wollongong, and that request was accepted, so he considers he was enrolled at that time. The Tribunal questioned whether he had any documents which support his claims that he was enrolled during this period. He stated that he has a letter of confirmation from the University of Wollongong that the university received his deferral request and that his request was successful. The Tribunal confirmed with the applicant that he was referring to an email dated 10 March 2019 from ‘UOW Future Students’. This email thanked the applicant for his deferral request and indicated the request was successful. The email also stated that a ‘new Offer Letter will be forwarded to your nominated email address after the University Census Date.’ The applicant confirmed that he did not have any other correspondence from the University of Wollongong to support his claim that he continued to be enrolled.

20. Having considered the evidence before it, including the applicant’s PRISMS record and the email from UOW Future Students dated 10 March 2017, the Tribunal is satisfied that the applicant was not enrolled in a course of study from 16 December 2016 until the date of the delegate’s decision. While the Tribunal accepts that the applicant had received correspondence from the University of Wollongong in the form of the email of 10 March 2017, confirming his request to defer his studies until the Spring 2017 term, and this request was accepted, the email refers to a deferral of an offer, and there is nothing contained within this document or any other document before the Tribunal to suggest the applicant was enrolled in a registered course at that time. On the evidence before me, I find the applicant was not enrolled in a registered course of study from 16 December 2016 to 16 August 2017, and had failed to maintain his enrolment in accordance with condition 8202.

21. 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).

    Consideration of the discretion to cancel the visa

22. 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, whether the visa holder has a compelling need to travel to or remain in Australia

23. The applicant told the Tribunal that the purpose for his travel and stay in Australia is to study to obtain a Masters degree and then return to Vietnam to help his family with the management of their family business, which is a real estate agency. The applicant confirmed that despite the visa refusal decision made on 16 August 2017, he enrolled in a Diploma of Business at Hannay International College (Hannay), which he commenced on 25 September 2019. Although the applicant’s PRISMS record indicates the status of this course is ‘finished’, the applicant stated that he did not obtain the qualification because when he was studying at Hannay he was advised the college would be closing. He stated that he accordingly transferred to the Diploma of Project Management at Sydney Metro College. The applicant’s agent provided the Tribunal with a copy of a publication providing notice of a decision by ASQA to de-register Hannay, with the decision taking effect from 23 May 2018. The Tribunal noted that this de-registration decision was subsequently partially stayed by the Tribunal (differently constituted), and that currently-enrolled students could continue to complete their courses. In any event, the Tribunal accepts that the applicant decided to transfer to a different college following the advice he received that Hannay had been de-registered by ASQA.

24. At the time of the hearing the applicant continued to be enrolled in the Diploma of Project Management at Sydney Metro College. He provided a Statement of Attainment indicating that he has completed two units in Term 2 of 2019. The applicant confirmed his intention to complete the Diploma of Project Management, which he is scheduled to complete in April 2019, following which he intends to enrol again in the Master of Information and Communication Technology Advanced at the University of Wollongong, the higher education degree which he originally arrived in Australia to obtain.

25. When asked why he sought to enrol at Hannay in August 2019, rather than enrolling in the Masters course at the University of Wollongong, the applicant gave evidence about an attempt he made to enrol at the University of Wollongong at the end of July, following receipt of the NOICC. He gave evidence that he was refused enrolment. Despite this, he intends to re-enrol at the University of Wollongong.

26. At the hearing the applicant confirmed that he married an Australian citizen on 9 August 2018. The applicant confirmed that he has made an application for a Partner visa, which he lodged on 22 September 2018. He stated that he is still awaiting the outcome of the visa application. The Tribunal questioned the applicant as to his reasons for pursuing a review of the decision to cancel his Student visa, rather than pursuing his Spouse visa application. The applicant stated he wished to continue with the review of the decision to cancel his Student visa as he still wishes to continue with his studies. He noted that his wife has two children, who he is now a father to. He stated that he wishes to support them, and to do so he needs to complete his studies.

27. The Tribunal sought submissions from the applicant’s agent as to why the applicant wished to pursue the application to review the decision to cancel his visa, in light of his evidence that he has also applied for a Spouse visa. The applicant’s agent submitted the applicant genuinely wishes to obtain a university qualification in Australia. He is currently on a Bridging visa E, which has made it hard for him to be accepted into higher education courses. In addition, the applicant believes the circumstances surrounding the cancellation of his visa were not totally his fault, and he therefore wishes to pursue the review of the cancellation decision.

28. The Tribunal is satisfied that the applicant’s intended purpose for travelling to and remaining in Australia continues to be to pursue his studies. Although the applicant has given evidence of his relationship to his wife and the parenting role which he has taken on as a result of his marriage, the Tribunal is satisfied that the applicant continues to have an interest in his studies. The Tribunal also places some weight on the applicant’s attempts to further his education after the delegate’s cancellation decision. The applicant enrolled in a Diploma of Business and is currently undertaking a Diploma of Project Management. The Tribunal accepts the applicant’s evidence of his continuing interest in pursuing a Masters degree at the University of Wollongong. Accordingly, the Tribunal gives this some weight against cancelling the visa.

    The extent of compliance with visa conditions

29. The applicant was not enrolled in a course of study from 16 December 2016 until the Delegate made his decision on 16 August 2017, a period of eight months, which is a significant period to be in breach of the enrolment condition. However, the applicant gave evidence of his communications with the University of Wollongong in March 2017 about his attempts to enrol in his Masters course and the deferment of the university’s offer of enrolment until the Spring 2017 session. The applicant gave evidence that he believed he continued to be enrolled during this period. I address this evidence more extensively in my consideration of the circumstances in which the ground for cancellation arose.

30. The applicant told the Tribunal that he has complied with all other conditions of his visas. There is nothing evidence before the Tribunal to suggest any other breaches by the applicant of his visa conditions. In light of the evidence that the applicant had sought a deferral of his studies, which was approved by his education provider, I give this matter weight against cancelling the visa.

    Degree of hardship that may be caused (financial, psychological, emotional or other hardship)

31. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated the main hardship is he will be unable to complete the Masters course which he arrived in Australia to complete. The applicant gave evidence that following the receipt of the NOICC from the Department, he attempted to enrol in the Masters course at the University of Wollongong, as per the enrolment timetable he was given by the university, but he was not permitted to do so. He instead enrolled in courses at Hannay and then at Sydney Metro College in order to continue studying while he has held a Bridging visa.

32. The applicant also indicated that he is now married and has parenting responsibilities in relation his wife’s two children, who are aged three and four years old. He expressed concern that without being able to complete his qualifications he will not be able to provide financially for his family in the future. He also raised issues of separation from his wife and two children, who are all Australian citizens. The applicant provided a number of photographs which show him with his wife and children, including at a holiday and at birthdays. The Tribunal considers the applicant will experience a significant degree of hardship if the visa remains cancelled. I accordingly give this weight against cancelling the visa.

    Circumstances in which the ground of cancellation arose

1. The applicant gave evidence that when he first arrived in Australia he had difficulty passing the English course required for him to enter his university course. He stated that he obtained his Bachelor degree in China, and therefore did not have an academic background in English. English is his third language. The applicant’s claims are supported by his PRISMS record and the copies of certificates for the English Language Course issued by UOW College, which confirm his claims that he had to repeat this course several times and achieved a sufficient mark in December 2016, following which he could proceed to enrol in the Masters course at the University of Wollongong.

2. The applicant gave evidence that following completion of his English course in early 2017, he tried to pay fees for his Masters course and enrol in this course. The applicant stated that at this point the University of Wollongong requested a copy of his Bachelor degree and transcript of results from Wuhan University. He contacted Wuhan University to obtain a copy, but was informed that he would need to attend Wuhan University in person in order to receive his degree. The applicant accordingly made arrangements to travel to China to collect his degree, which he did over March-April 2017.

3. The applicant stated that after his return to Australia in April 2017, he attempted to enrol in the Masters course at the University of Wollongong, but was informed that he had missed enrolment for the semester and would need to wait until the Spring 2017 session to enrol. The applicant stated that he was able to enrol from about 20 July to 27 July 2017.

4. The Tribunal notes the email dated 10 March 2019 from the University of Wollongong, which indicates the university had received an electronic request from the applicant for deferral of his enrolment in his Masters course. This email also indicates that the applicant would be sent a new offer letter. The Tribunal asked the applicant whether he had received a new offer letter. He stated that he had not, and that he did not receive any correspondence from the University of Wollongong after this.

5. The applicant stated that prior to attempting to enrol for the Spring 2017 session, he received a copy of the NOICC, which is dated 24 July 2017. The applicant stated that when he went to enrol at the University of Wollongong he took a copy of the NOICC with him. He stated that he attended the student advisor desk. He showed the people at the desk the NOICC and asked why he had received it. He indicated that another person from the student administration service was called to the desk, although he did not remember the names or roles of the people whom he spoke to. He told the Tribunal that when he asked if he could enrol in the Masters course, he was told that he would need to return to Vietnam and reapply for the course from there. The Tribunal questioned the applicant as to whether the university representatives had given any reasons for this. The applicant stated that he did not know why, however they advised him of this when they saw the copy of the NOICC.

6. The Tribunal questioned the applicant as to why he had not attempted to enrol from 20 to 24 July 2017, if enrolments were open during this period. The applicant stated that in January 2017 his family’s safe in Vietnam was robbed. Copies of certificates of title and other assets were stolen. The applicant provided a range of documents which evidence the robbery and the assets which were taken. The applicant explained to the Tribunal that during the enrolment period his family was arranging to send him some the funds required to enrol. Prior to 24 July 2017 he had not yet received the funds required to enrol.

7. The applicant told the Tribunal that he did not receive any warning from the University of Wollongong about the cancellation of his enrolment. The Tribunal notes that in the evidence he provided at the start of the hearing, the applicant stated he believed he continued to be enrolled in the Masters course at the University of Wollongong. He gave evidence that he was not informed of the cancellation of the Masters course in October 2015. The Tribunal notes that the university did not issue a new enrolment despite the applicant continuing to be enrolled in the English Language Programs at UOW College, which is the English program associated with the university.

8. Based on the documentary evidence provided to the Tribunal, the Tribunal is satisfied that the applicant contacted the University of Wollongong in March 2017 to seek deferment of his Masters course, and accepts that he was informed by the university that he could enrol in the Spring 2017 session. The Tribunal accepts the applicant’s stated reason for not commencing the Masters course in July 2015, given he was yet to achieve a pass mark for the English Language Programs. The Tribunal accepts that the repeated efforts the applicant made in the English program are no reflection on his commitment as a student, and accepts that he experienced difficulties due to English being his third language and not the language of instruction of his undergraduate degree.

9. While the Tribunal has some doubt about the applicant’s claims that the University of Wollongong did not send him further correspondence after the email of 10 March 2017, the Tribunal accepts that the applicant had attempted to enrol in his chosen course in March 2017, and then again in April 2017, but was told by the university that he could not enrol on those occasions because further documentation on his Bachelor degree was required, and then because the semester was well underway. The Tribunal notes that the applicant satisfied the university’s request for documentation by returning to China to obtain a copy of his degree and transcripts. While it is the applicant’s responsibility to ensure that he continues to meet his visa conditions, including the enrolment requirement, the Tribunal is satisfied that the administration surrounding the applicant’s enrolment contributed to his failure to be enrolled after 16 December 2016. The email of 10 March 2017 from UOW Future Students indicates that the University of Wollongong had advised the applicant he could not enrol in his chosen course until the Spring 2017 session as the Autumr 2017 session has already commenced. This email also confirms that the applicant had been successful in his application for a deferral. Despite this, the applicant’s enrolment records within PRISMS do not appear to have been updated. The Tribunal accepts, based on the applicant’s evidence and the email dated 10 March 2017, that the applicant had behaved appropriately in seeking a course deferral, and that the university’s timetable contributed to the applicant not being enrolled during the period March 2017 until the time of the delegate’s decision.

10. The Tribunal has also taken into account the applicant’s attempts to remedy his non-enrolment and continue with his studies since the cancellation decision, enrolling at Hannay and then at Sydney Metro College. The applicant gave evidence that he has been unable to enrol in a higher education course since the cancellation decision as universities would not allow him to enrol while he holds a Bridging visa. Having regard to the circumstances, in particular the administrative difficulties which the applicant encountered in obtaining enrolment after 16 December 2016, the Tribunal gives this weight against the cancellation of the visa.

    Past and present behaviour of the visa holder towards the department

11. The Delegate noted in the Department’s decision that the applicant has been cooperative with the Department and provided information when requested. In this regard the Tribunal notes the statement the applicant provided to the Department prior to his visa being cancelled. The Tribunal is not aware of any issues with the applicant’s past or present behaviour towards the Department. The applicant stated at hearing that he was not aware of any issues regarding his behaviour towards the Department. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

12. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it 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, 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

13. 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. The applicant would need to seek advice regarding his immigration status.

14. The Tribunal is also mindful that a visa cancellation could mean that 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 the relevant Public Interest Criterion. The applicant would therefore experience a further delay in his ability to obtain a postgraduate qualification in Australia. As noted above, the applicant stated that the purpose for him remaining in Australia is to obtain a Masters qualification. The applicant also gave evidence that an exclusion of three years would create difficulties for his family unit, as he is now married to an Australian citizen and has two young children from the marriage, for whom he has become a parent figure. The Tribunal notes that the applicant may be eligible for a Partner visa, however an application for such a visa is not currently before the Tribunal and the applicant gave reasonable reasons as to why he wishes to pursue the review of the cancellation of his Student visa, namely because his priority continues to be to obtain a Masters degree, and he believes the cancellation decision was wrongly made. Given the circumstances, the Tribunal gives this some weight against cancellation of the visa.

    Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation

15. The applicant gave evidence that he married in June 2018 to an Australian citizen and has parenting responsibilities in relation to his wife’s children, who are aged three and fou years old.

16. The applicant’s agent made the following written submissions:

    Australia is a member of Unicef- the leading organization working to protect and improve the lives of every child. The organization has defined that every child has rights, including:

    Article 3: “The best interests of the child: any decision that is made, or any action that is taken, that may affect children must prioritise the best interests of the child, always”

    And

     Article 9: (Separation from parents): “Children have the right to live with their parent(s), unless it is bad for them”

    Furthermore, according to Guiding principles - Treatment of children, it is defined that:

    Whilst there are no strict criteria by which the best interests of a child could be considered, the principles in the CROC can inform what is meant by a child's 'best interests'. As Australia is a party to the CROC, those principles should be applied when assessing the child's best interests.

17. The agent’s submission also set out the factors that should be considered when exercising a discretionary power affecting a family member, primary care giver or person who has claimed responsibility for a child.

18. The Tribunal has considered these submissions, as well as the evidence the applicant provided as to his relationship to the children of his marriage and the role he plays as a care giver. The Tribunal considers there is evidence that the applicant has claimed parenting responsibilities for the children of his marriage. The Tribunal gives this some weight against cancellation of the visa.

    Any other relevant matters

19. The Tribunal has considered whether there are any other relevant matters which should be taken into account, but finds there are no other relevant matters other than those covered regarding the above matters.

20. Having regard to the circumstances of this case, the Tribunal considers that the applicant’s visa should not be cancelled. In particular, the Tribunal gives weight to the circumstances in which the breach occurred, in particular the evidence that he applied for a deferral of the commencement of this course. This deferral was accepted, however it was not reflected in the applicant’s PRISMS record, his enrolment in the Masters course having already been cancelled in October 2015 and not subsequently updated by his education provider. The Tribunal notes the evidence of the approved deferral of the applicant’s studies was not provided to the Department. The Tribunal has had the benefit of receiving the email from the University of Wollomgong dated 10 March 2017. The Tribunal also gives weight to the applicant’s purpose for remaining in Australia, with his evidence that his priority remains to complete a Masters degree. While the applicant’s circumstances have changed since his initial arrival in Australia in 2014, in particular his marriage in 2018 and subsequent parenting responsibilities, the Tribunal accepts the applicant’s continues to be focused on completing the Masters degree that he arrived in Australia to study.

21. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

22. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Frank Russo
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.