Sapkota (Migration)

Sapkota (Migration) [2020] AATA 173 (22 January 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Amrit Sapkota
CASE NUMBER:  1932125
HOME AFFAIRS REFERENCE(S):           BCC2019/3241196
MEMBER:Michael Biviano
DATE:22 January 2020
PLACE OF DECISION:  Melbourne
\DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 22 January 2020 at 5:31pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – not being enrolled in a course at the same level or a higher level than the registered course – unsatisfactory course progress – health issues – depression – non-payment of fees – enrolling in lower level courses– had made numerous attempts to enrol in a bachelor’s degree– decision under review set aside
LEGISLATION
Migration Act 1958, s116,
Migration Regulations 1994 (Cth), Schedule 8
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 November 2019 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 subclause (2)(b) of condition 8202 of his visa was breached as he was not enrolled in a registered course at the same level or a higher level than the registered course in relation to which the visa was granted. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 15 January 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent.
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
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:
a.be enrolled in a full-time registered course: 8202(2)(a);
b.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);
c.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and
d.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 in breach of subclause (2)(b) of condition 8202 of his visa as he was not enrolled in a registered course at the same level or a higher level than the registered course for the period from 19 January 2019 to 7 November 2019 in relation to which the visa was granted.
The decision record of the delegate of the Department of Home Affairs on 7 November 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa, which was granted on 16 June 2017, and the reasons for the cancellation of the visa (Decision Record).
Prior to the hearing, on 14 January 2020, the applicant, by his migration agent, filed documentation in support of his application, including:
a.Return airline tickets to Nepal for travel between 20 November 2018 and 8 January 2019;
b.Evidence of assignment submissions for the Diploma of Information Technology dated 11 September 2019 and 23 September 2019;
c.Email dated 21 December 2018, being an Unsatisfactory Academic Performance Warning Letter Stage 2 from Victoria Institute of Technology;
d.Confirmation of Enrolment (COE) number B387F089 for the Diploma of Information Technology at Australian Technology and Innovation College (ATIC) commencing on 2 September 2019 and concluding on 1 September 2020;
e.COE number 930CF115 for the Bachelor of Information Technology at Victoria Institute of Technology (VIT) commencing on 13 November 2017 and concluding on 14 July 2020;
f.Email from ATIC to the applicant dated 18 June 2019;
g.Text messages between Dinesh Sir and the applicant dated 14 July 2019 and 18 July 2019;
h.Emails between ATIC and the applicant dated 18 June 2019 and 13 July 2019;
i.Email from King’s Own Institute (KOI) determining not to process the application any further because it did not meet the KOI minimum GTE requirement dated 6 May 2019;
j.Letter of Offer from Victorian Institute of Technology for the Bachelor of Information Technology and Systems dated 26 September 2017;
k.Medical records and notes from Dr Khagendra Kafle dated 8 August 2015, diagnosing him with Episode Anxiety;
l.Letter from Dr Khagendra Kafle dated 19 October 2019, certifying that he examined the applicant on 24 November 2018, who was diagnosed with Panic Disorder, hospitalised overnight and discharged on oral medication and advised to follow up with treating doctors regularly;
m.COE number A95CF940 for the Diploma of Information Technology at Australian Careers College commencing on 6 May 2019 and concluding on 18 May 2020;
n.Email from VIT determining not to proceed with applicant’s application for enrolment in the Bachelor of Information Technology dated 1 November 2019;
o.Email from KOI dated 16 October 2019 seeking the provision of additional material in support of the application for enrolment;
p.COE number AEC29B1 for the Diploma of Information Technology at ATIC commencing on 2 September 2019 and concluding on 1 September 2020;
q.Interim Academic Progress Report at VIT dated 8 March 2018;
r.Pay slips for the applicant from Mark Hotel Group;
s.COE number 8D729971 for the Bachelor of Information Technology at the University of South Australia commencing on 16 July 2018 and concluding on 31 July 2020;
t.Email from KOI determining not to accept the application because it did not meet the KOI minimum GTE requirement dated 18 October 2019;
u.Letter of offer from ATIC dated 10 September 2019 for the Diploma of Information Technology, which was to commence on 2 September 2019 and conclude on 1 September 2020;
v.COE number 8D728B14 for the Diploma of Information Technology at South Australia Institute of Business and Technology (SABIT) commencing on 21 June 17 and concluding on 30 June 2018;
w.Submission to the Tribunal (Submission), for which the applicant gave a declaration that its contents were true;
x.Letter from ATIC dated 13 January 2020 confirming enrolment in the Diploma of Information Technology;
y.Interim transcript from ATIC dated 13 January 2020;
z.Letter from the University of South Australia and SABIT dated 12 October 2017 refusing a transfer;
aa.COE number A64CD762 for General English at Global English College, commencing on 25 February 2019 and concluding on 12 April 2019; and
bb.VIT payment receipts.
The applicant completed high school in Nepal in 2016 and then undertook IELTS studies, and on 21 June 2017 he arrived in South Australia from Nepal pursuant to a Student Class TU (Subclass 500) visa to study a suite of courses including:
a.Diploma of Information Technology at SABIT; and
b.Bachelor of Information Technology at University of South Australia.
At the time the visa was granted, the applicant was to be enrolled in a Bachelor of Information Technology, which is a course at level 7 of the Australian Qualification Framework (AQF).
The applicant claimed that while studying in South Australia he became lonely and had very little support and struggled with his studies. He gave evidence that he tried to interact with other students, but he felt isolated and claimed that he had little assistance from his education providers in South Australia. He received support from a fellow Nepalese student who assisted him, after observing that the applicant was sad, quiet and appeared to be alone. The applicant gave evidence he was on a low and he continued to struggle with his studies. He gave evidence that the worse he performed in his studies, the worse he felt. He became sad. The applicant was given advice by his fellow student that he should consider studying in Sydney, which has a larger Nepalese community than in South Australia, which would provide him with a greater level of support.
The applicant sought advice from an agent and applied to study a Bachelor of Information Technology at VIT in Sydney. On 26 September 2017, he received a letter of offer from VIT to enrol in the Bachelor of Information of Technology. The offer contained conditions that the applicant was required to meet including obtaining a release from the University of South Australia and SABIT from their courses. The applicant struggled to obtain a release but he eventually obtained one on 6 October 2017.
He then moved to Sydney and on 20 October 2017 he enrolled in the Bachelor of Information Technology at VIT and received a COE. The course was to commence on 13 November 2017 and conclude on 14 July 2020;
The applicant, during first semester, studied four subjects and sat the exams but failed all four subjects. He gave evidence that he attended most classes.
The Submissions confirmed that the applicant received a first warning from VIT regarding his unsatisfactory course progress. The applicant in the Submissions claimed that he was unhappy with the support given by VIT in relation to his studies. The Submissions claim that VIT did not provide any level of support for the weaker students. The applicant gave evidence that the first warning was sent via the VIT mailbox and he no longer has access to the mailbox.
The applicant gave evidence that he studied the second semester at VIT. He again studied four subjects and again failed all four subjects. He attended more than 70% of classes and submitted all assignments and sat the exams.
The applicant gave evidence that he was embarrassed with himself in failing the second semester. He was unable to tell his parents about his struggles and began to panic. He felt depressed and was concerned about his future studies in Australia and dream career back in Nepal. He became depressed and lost seven kilograms in weight and did not leave the house he was living in.
He gave evidence that he enrolled in the third semester at VIT and paid the tuition fees on a payment plan. However, as at the end of October 2018 he owed VIT $2,000 in tuition fees. Notwithstanding that he was enrolled in the third semester, he ceased attending classes and he claims that he was unable to study because he was scared.
The applicant gave evidence that at this time he was working one day a week in a café for 10 to 12 hours per week, to make sufficient money to pay for rent and living expenses.
The applicant spoke to the Academic Coordinator at VIT in the third semester to discuss his circumstances. During those discussions he was told that he had to study hard but the applicant was not given any support. However the applicant conceded in evidence that he had not told the Academic Coordinator that he was unwell or about his struggles.
The applicant gave evidence that in October 2018, he told his parents about his struggles with the course and his poor academic progress and his condition in Australia.
The applicant’s parents were supportive and arranged for him to return home and were able to give him financial and emotional support. The applicant claims that he felt better but was still stressed and frustrated by his lack of progress.
He returned back to Nepal on 20 November 2018 and flew back to Australia on 9 January 2019.
Shortly after arriving in Nepal, on 24 November 2018, he saw a psychiatrist, Dr Khagendra Kafle, who diagnosed him with Panic Disorder, hospitalised him overnight and discharged on oral medication and advised to follow up with treating doctors regularly. The medical evidence did not confirm that his condition was so severe that he was unable to study or maintain his enrolment. Further even if his condition was so severe, the applicant was able to defer his studies, which he did not do.
The Tribunal questioned the applicant about the cause of his disorder and whether he gained any medical or psychological reports in Australia about his condition. He conceded that he had not obtained any such reports. He properly conceded that he did not have medical evidence before the Tribunal that his condition was so severe that he could not study or defer his studies.
Nevertheless, the Tribunal accepts the applicant’s medical evidence that he was suffering from Panic Disorder which required hospitalisation and treatment, and finds that such evidence is consistent with his claims of depression and substantial weight loss. The Tribunal finds that the applicant’s medical condition contributed to being unable to study in the third semester at VIT in late 2018.
On 21 December 2018 he received a letter from VIT which constituted an Unsatisfactory Academic Performance Warning Letter. The letter provided, omitting formalities:
Your enrolment in Bachelor of Information Technology and Systems at VIT (Victorian Institute of Technology) began in Nov'17. During the enrolment process you were informed of your course progress requirements both with reference to your academic progression as well as with reference to visa conditions. You were also informed that VIT (Victorian Institute of Technology) has adopted the Department of Education / Department of Immigration and Border Protection (DIBP) approved DEEWRDIAC Course Progress Policy & Procedure as well as VIT (Victorian Institute of Technology) Student Academic Progress policy.
Unsatisfactory Course Progress is defined as being “F” in 50% or more of the units attempted in a study period (also referred as Semester). Course requirements have been defined in the Course Outline provided during your enrolment and has been reiterated for each unit at the start of Semester. All requirements for meeting satisfactory performance has been intimated to the students before the commencement of the course including but not limited to submitting all assessments on before stated deadlines, attending all written/oral examinations and attaining prescribed passing standards for assessments as per course/unit guidelines.
You were already issued a warning on your Unsatisfactory Progress last semester and were offered academic intervention counselling with a view to improving your academic performance. The current semester results indicate that you are at further risk and have not addressed the requirements to
improve and pursue the course successfully.
As a student who has failed in more than 50% of units in two semesters in the course we are placing you at Stage 2 risk and we intend to report your unsatisfactory progress through notification to DIPB through PRISMS which may require us to cancel your enrolment.
You are now required to meet with HE Coordinator or any person acting in that capacity for academic counselling, where the academic counsellor to justify, with documented evidence, the reasons behind
your unsatisfactory academic performance. In this meeting we will assess whether a further intervention strategy will help you improve your performance. Failing a favourable outcome in the meeting we may be required to cancel your enrollment due to you academic inability to pursue the course. Failure to attend counselling session without valid reasons would be viewed seriously.
Your counselling session with Academic Coordinator is scheduled on:14-Feb-2019 11:00am
This letter serves as 21-day notice for you to be aware that you may be reported to DIPB through PRISMS which may require us to cancel your enrolment and impact your student visa.
This email would be placed in your file for records purposes.
Importantly, the letter was given for unsatisfactory course performance, and left open the prospect that his enrolment may be cancelled upon notification to the Department of Immigration and Border Protection of his unsatisfactory course performance.
The applicant returned back to Australia on 9 January 2019. He believed that he would meet with VIT on 14 February 2019, and be given an opportunity to explain his circumstances and re-enrol.
The applicant’s enrolment in the Bachelor of Information Technology was cancelled by VIT on 18 January 2019.
The applicant appears to believe from his statement in the Submissions that the cancellation of the course occurred by reason of non-payment of fees. He stated in the Submissions:
He was in impression that the college will re-open and will have counseling session on 14 Feb 2019 with the academic coordinator as mentioned on the 2^nd warning letter. He always paid his tuition fee installment on time. He thought he will pay the next installment as soon as college open for the next semester. Please refer to the attached tuition fee payment receipts to VIT.
The applicant gave evidence at the hearing that his enrolment was cancelled for non-payment of fees, which was set out on the notification given to him about the cancellation of his enrolment.
The applicant submitted VIT payment receipts to the Tribunal, proving that he made payments to VIT in relation to his tuition fees. The COE provided that the tuition fee for the bachelor’s course was $45,000. He submitted receipts totalling $13,750 but after 30 June 2018, there was only one receipt for $1,000 and he gave evidence that he owed $2,000 in fees from late October 2018.
Accordingly, it is unsurprising that his enrolment in the course at VIT was cancelled having regard to the non-payment of fees, poor academic performance and non-attendance in the third semester.
By reason of the cancellation of the enrolment, the applicant was forced to find an alternative course provider. He consulted with an education agent who advised him to undertake a diploma leading to a bachelor’s degree in Information Technology.
The applicant claims while making his application to be enrolled in a diploma and bachelor’s degree, he enrolled in an English course, which he undertook from 25 February 2019 to 12 April 2019. The COE confirms that the course was a non AQF Award course.
On 22 February 2019 the applicant enrolled in a Diploma of Information Technology at Australian Careers College (ACC) commencing on 6 May 2019 and concluding on 18 May 2020. The course is a level 5 course of the AQF. The applicant commenced the course. He was the only student enrolled in the course. He attended classes and submitted assignments.
He changed course providers at the encouragement of ACC as he was the only student enrolled in the course. He enrolled in the Diploma of Information Technology at ATIC, commencing on 2 September 2019 and concluding on 1 September 2020. The course is also a level 5 course of the AQF.
Accordingly, by enrolling in the diploma course alone, he was enrolled in a course that was not at the same or a higher level than a level 7 course, and it was a breach of condition 8202(2)(b) of the visa.
The applicant has, during 2019, made unsuccessful attempts to enrol in a bachelor’s degree at VIT and KOI, but those attempts were unsuccessful due to the applicant’s poor academic record.

The applicant is continuing to study a Diploma of Information Technology at ATIC and submitted evidence that he has successfully completed seven units and he is required to complete a further 13 units to complete the diploma.
On 9 October 2019, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa.
On 22 October 2019, the applicant provided a detailed submission to the Department in response to the NOICC with numerous supporting documents, which have been submitted to this Tribunal and are identified above.
The applicant gave evidence that he was aware that he was in breach of his visa by enrolling in lower level courses, but he had little alternative due to his failing to complete the Bachelor of Information Technology and after completing the diploma, he wishes to enrol in the Bachelor of Information Technology.
The applicant conceded in evidence that he was not enrolled in a course at level 7 of the AQF or higher from 19 January 2019 to 7 November 2019, being a period of nine months and 18 days, and was enrolled in lower level courses for a significant period of that time. By reason of not being enrolled in a level 7 course of the AQF or higher for that period of time, he did not meet condition 8202(2)(b) of his visa. As the applicant was not enrolled in a course at level 10 of the AQF, the exemption at condition 8202(3) of the visa does not apply to the applicant and he is required to be enrolled in a course at level 7 of the AQF or higher.
On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted, for the period from 19 January 2019 to 7 November 2019. Accordingly, the applicant has not complied with condition 8202(2) of his visa. As this was a condition that was attached to his visa, the applicant therefore breached a condition of his 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 he came to Australia to study and undertake the courses as discussed above.
As discussed above, the applicant has continuously remained enrolled in courses and studied since his arrival in Australia.
The applicant initially studied a Diploma of Information Technology at SABIT, which he was released from, and then studied unsuccessfully a Bachelor of Information Technology at VIT, which was cancelled for non-payment of fees. The applicant did not complete any subjects in those studies. He then enrolled in and studied a Diploma of Information Technology at ACC and then at ATIC. He has not completed a course since he has been in Australia, but he has completed seven of 20 units required to be completed for the diploma at ATIC.
The applicant claims that he wants to work in Information Technology back in Nepal.
The applicant’s enrolment at ATIC in the diploma is expected to conclude on 1 September 2020. The applicant, after completing the diploma, intends to enrol and complete the Bachelor of Information Technology.
The Tribunal gave the applicant the opportunity after the hearing to file any documents supporting his application by 21 January 2020, which, in particular, would relate to whether he can obtain an enrolment in a course in the future at level 7 of the AQF or higher to comply with his visa conditions.
The applicant filed with the Tribunal at the hearing an offer of enrolment from Group Colleges Australia dated 15 January 2020 to study a Bachelor of Business from 30 August 2020 to 18 August 2023 (Offer), which is the only offer for a bachelor’s degree he could obtain.
He gave evidence that he is very keen to return home with a bachelor’s degree, especially a Bachelor of Information Technology.
Having regard to the applicant’s evidence and his conduct of continued study during the time he has been in Australia, the Tribunal accepts that the applicant has travelled to Australia and stayed here to study, and he intends to study in the future. The applicant was not enrolled in the appropriate level of course for a period of nine months and 18 days, but the Tribunal accepts that the applicant has changed courses because of his failed studies in the Bachelor of Information Technology and his condition at the time of those studies, especially the third semester at VIT. The applicant was continuously enrolled in a registered course, as set out above, although not at the appropriate level for a substantial period of time of nine months and 18 days; for these reasons, the Tribunal gives some weight towards the visa not being cancelled.
The extent of compliance with visa conditions
The applicant was not enrolled at the appropriate level of course from 19 January 2019 to 7 November 2019. Therefore the applicant has not complied with condition 8202(2) for a substantial period of time. The non-compliance with condition 8202(2) for such a substantial period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason of non-enrolment.
As discussed above, the applicant’s non-compliance with the visa condition relates to a combination of his failed studies at VIT, his mental state and his inability to enrol in another bachelor’s degree due to his cancelled studies at VIT.
Whilst the Tribunal accepts that the applicant was required to change courses due to his failed studies, the applicant was obliged to meet his visa conditions and it was his responsibility to maintain enrolment in the appropriate level of course. If he could not maintain that level of enrolment, it was open to him to apply to the Department for a new visa.
The Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that he would be in breach of his visa by enrolling in a Diploma of Information Technology. The applicant had made numerous attempts to enrol in a bachelor’s degree after the cancellation of his enrolment with VIT, but those applications failed to obtain an enrolment in a Bachelor of Information Technology.
The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his 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 applicant was required to be enrolled in a bachelor level course or higher.
The Tribunal finds that the reasons for not being enrolled in a bachelor level course or higher were the responsibility of the applicant.
Having regard to the substantial period of the breach, that the applicant could have applied for a new visa, and that the applicant was responsible for not being enrolled at the appropriate course level, the Tribunal gives some 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 he or other members of his family would suffer hardship if the visa was cancelled.
The applicant gave evidence that the visa cancellation would cause him and his family a substantial degree of hardship as:
a.His family would be embarrassed by his studies in Australia if he was to return now without a qualification, and he would not be able to provide for his parents in the future in a well-paid job in a global company in Nepal;
b.His family would have spent a substantial degree of money on his education without obtaining any qualification and those funds, especially those for the Diploma of Information Technology at ATIC which is ongoing, would have been wasted;
c.He would not be able to return to Nepal and continue his studies as now that he is 22 years of age and has a gap of four years since completing his secondary schooling it would be difficult for him to gain tertiary enrolment in Nepal; and
d.Further, Nepalese educational institutions would not recognise part completed courses in Nepal and offer credits. Therefore the study of the Diploma of Information Technology would be wasted and the tuition fees lost.
The applicant claims that failing to get his qualifications including a bachelor’s degree will affect his family as this will affect his ability to obtain employment and the quality of the job in Nepal.
The Tribunal notes that the applicant has not completed any qualifications and he will return to Nepal empty-handed if the visa is cancelled. Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and his family if the visa is cancelled, especially as he only has eight months left to complete the Diploma of Information Technology.
The applicant gave evidence that if his visa was cancelled he would return home and seek to attempt to get enrolled to undertake studies in Nepal, but he was not confident he would be able to get enrolled in a suitable tertiary course due to the four year gap since completing his secondary schooling.
Nevertheless the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters which 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 marginal 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 knew and was aware that by not being enrolled in a registered course of study at the appropriate level he would be in breach of condition 8202 and that his visa may be cancelled. However the applicant made numerous attempts to enrol in a bachelor’s degree course, but his applications were refused due to his academic record, in part influenced due to his mental state at the time of the cancellation of the enrolment at VIT.
The primary purpose of the applicant under the visa is to undertake a registered course at a level appropriate to his visa. The applicant was not enrolled in a registered course at an appropriate level for a period of nine months and 18 days, which is a substantial period to be in breach of the visa.
The Tribunal has considered the applicant’s explanations for why he was not enrolled in a registered course at a level appropriate to his visa for such a substantial period of time and therefore in breach of condition 8202(2). The Tribunal does not accept that circumstances were beyond his control, but does accept that such circumstances are a reasonable explanation for not being enrolled at the appropriate level of course for such a substantial period of time. The Tribunal gives this matter some weight towards the visa not 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
As the cancellation of the visa does not affect the visa of any other person, 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 he 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 he would need to depart Australia and apply from overseas for most types of further visa.
Further, if the Tribunal decides to affirm the decision to cancel the TU 500 Student 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 he has to depart Australia, then that application may not be approved within the next three years.
However these consequences 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 he would return to Nepal and attempt to undertake his studies there, and therefore there is no indication that he 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
This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Nepal, and he did not give any reasons as to why he could not return to Nepal, and he has not made any claims that relate to this consideration. Accordingly the Tribunal gives this factor no 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
The Tribunal considers that it is a relevant matter as to whether the applicant is able to obtain enrolment in a registered course at an appropriate level to his visa. If the applicant is unable to obtain enrolment in a course that is at an appropriate level to his visa it will weigh towards his visa being cancelled, as there would be little utility to set aside the cancellation of the visa if the applicant would remain in breach of his visa condition.
The applicant gave evidence that he would be able to gain enrolment in a bachelor’s degree and he was given the opportunity to submit evidence by 21 January 2020 in support of being able to obtain a future enrolment in a course at level 7 of the AQF or higher.
At the hearing, the applicant tendered the Offer, which is to undertake a Bachelor of Business, which is a course at level 7 of the AQF. If the applicant enrols in the Bachelor of Business, he will be compliant with the visa condition of maintaining an enrolment at level 7 of the AQF or higher.
Further the applicant submitted to the Tribunal in accordance with the opportunity to file further documents in support of his application a COE at Wentworth Institute dated 21 January 2020 to undertake a Bachelor of Business from 16 November 2020 to 23 June 2023. The effect of obtaining the COE is that if the cancellation is set aside, he will be compliant with the visa condition of maintaining an enrolment at level 7 of the AQF or higher
Accordingly, the Tribunal gives this factor some weight towards the visa not being cancelled.
Conclusion
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) 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 173

22 January 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies