SHAH (Migration)

[2019] AATA 4109

SHAH (Migration) [2019] AATA 4109 (9 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shadab Ali Shah

CASE NUMBER:  1708995

HOME AFFAIRS REFERENCE(S):           BCC2017/775711

MEMBER:Frank Russo

DATE:9 August 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 09 August 2019 at 5:45pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – compelling reason for remaining in Australia – to obtain a tertiary qualification – took steps to remedy breach – circumstances giving rise to non-compliance – financial difficulties – misguided by education agents – extenuating circumstances beyond the applicant’s control – credible witness – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 18 April 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 the applicant did not meet the requirements of his Student visa as 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 appeared before the Tribunal on 4 June 2019 to give evidence and present arguments.

4. 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

5. 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?

6. 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).

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

8. The applicant is a 26-year-old national of Pakistan. In addition to the information provided with his application for review, the applicant provided the Tribunal with copies of the following documents:

   a.A copy of his passport;

   b.Confirmation of Enrolment in the Diploma of Leadership and Management at Wakefield International Business School, trading as Alpha Institute, created on 4 June 2019;

   c.A summary of email conversations between Elite College, a migration agent and an accountant;

   d.Statement of Attainment in the Bachelor of Business (Professional Accounting), issued by Elite Education Institute;

   e.Email from the applicant to Elite Education Institute, dated 30 January 2017, with a response email dated 5 February 2017;

   f.Email from migration agent, dated 8 March 2017, attaching a letter of offer from Group Colleges Australia;

   g.Emails from a migration agent and accountant to the applicant, dated April 2017, as well as emails from the same migration agent and accountant, dated March 2017, in relation to a Notice of Intention to Consider Cancellation (NOICC) of the applicant’s visa and requesting the applicant sign a Form 956 (Advice by a migration agent/exempt person of providing immigration assistance);

   h.Email from a migration agent to the applicant, dated 15 March 2018, attaching a Letter of Offer from Elite Education Institute for the Non-award course of Bachelor of Business (Professional Accounting); and

   i.Various documents relating to the applicant’s father financial losses in 2016, including an affidavit from the applicant’s father, dated 15 June 2019.

9. 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.

10. The applicant gave evidence that he first arrived in Australia in February 2014 for the purpose of studying, in particular to obtain a Bachelor of Accounting.

11. The applicant gave evidence of various enrolments in Accounting and Business courses from February 2014, which is set out in my consideration of the circumstances in which the ground for cancellation arose.

12. 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.

13. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that it is an accurate record. The applicant explained that his first enrolment in the Bachelor of Accounting, which was made in 2013, was cancelled because he was still in Pakistan at that time. He arrived in February 2014, and so a new Confirmation of Enrolment for the same course was issued, with a commencement in March 2014. Otherwise, he stated that the PRISMS record reflected the enrolment history he told to the Tribunal.

14. The Tribunal finds that the evidence the applicant gave of his enrolments is consistent with the information set out in his PRISMS enrolment record. The applicant’s PRISMS record indicates that he had been enrolled in a Bachelor of Business (Professional Accounting) from 13 July 2015, however this enrolment was cancelled on 29 July 2016, and the applicant was not enrolled in another course again until 2 May 2017, when he was enrolled in the Certificate IV in Business.

15. The applicant indicated at the hearing that he accepts that he was not enrolled in a course of study from 29 July 2016 to the date of the Delegate’s decision on 18 April 2017, and had failed to maintain his enrolment in accordance with condition 8202. The applicant conceded that there are therefore grounds for cancellation of the visa.

16. On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 29 July 2016 to 18 April 2017. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

17. 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

18. The applicant told the Tribunal that the purpose of his travel to and stay in Australia is to obtain tertiary qualifications in Australia. He stated that initially he was enrolled in a Bachelor of Accounting and his intention was to obtain a Bachelor degree. At the time of the hearing the applicant stated that he no longer wishes to pursue a Bachelor degree in Australia. As a result of the events which resulted in the ground for cancellation, and as a result of the time and finances he has already spent in being in Australia, as well as the stress associated with what he has experienced in Australia, he now wishes to pursue an Advanced Diploma in Leadership and Management, after which he will return to Pakistan.

19. He stated that he wishes to use the qualifications and experience he gains in Australia to take back to Pakistan, where he intends to assist his father with his agricultural business. The applicant told the Tribunal that his father owns agricultural land and manages farmers who produce crops such as rice and sugar cane. The applicant stated that this business includes managing accounts and paying wages. He stated that companies come and purchase the agricultural products from his father.

20. The Tribunal questioned the applicant as to how his proposed studies in Leadership and Management will assist him in relation to this business. He stated that to run the business you need leadership and management skills as you need to work out things such as salaries and production costs.

21. The Tribunal enquired whether the applicant has any evidence of the existence of such a business. On 18 June 2019 the applicant provided the Tribunal with various documents which provide evidence of the existence of the business, including certified receipts for agricultural products in 2016, a survey report, copies of register details of agricultural land, together with certified English translations, and an affidavit from the applicant’s father. Based on this evidence, the Tribunal is satisfied that the applicant’s father owns a business of the nature described by the applicant in his evidence.

22. The applicant told the Tribunal that in Pakistan he completed the equivalent of year 12, undertaking ‘pre-engineering’ at High school. After this he briefly attended an agricultural university, where he studied a Bachelor of Agriculture for three months. He also worked in an accounting firm part-time for 12 months. The applicant gave evidence that he currently works as a security guard, providing corporate security for buildings. He stated that he works a maximum of 20 hours per week. The applicant stated that prior to this he has worked in cleaning and labouring.

23. The applicant confirmed that although his father’s company experienced financial difficulties in 2016, which resulted in his inability to pay his course fees in 2016, this situation has been resolved and he is in a position to fund his studies.

24. There is no evidence before the Tribunal that the purpose for the applicant’s travel to and stay in Australia is for a reason other than to study. The Tribunal also notes that while the applicant now wishes to enrol in an Advanced Diploma of Leadership and Management, his enrolments since arriving in Australia in 2014 have been consistent with his stated intention of studying Accounting. The applicant has enrolled in Accounting and Business courses and has not enrolled in any courses in unrelated fields. Based on the evidence provided at hearing, the Tribunal finds that the applicant has put forward reasonable reasons for now wishing to study an Advanced Diploma of Leadership in Management. Further reasons are set out in my consideration of the circumstances in which the ground for cancellation arose, which set out the difficulty the applicant has had in obtaining adequate advice and services from migration and education agents, and how this has contributed to his stress and frustration. The applicant has provided evidence that supports his attempts to obtain a fresh Confirmation of Enrolment following the cessation of his enrolment in the Bachelor of Business (Professional Accounting) on 29 July 2016, including attempts that were made in early 2017, prior to the applicant’s receipt of the NOICC. Following the Delegate’s decision, the applicant has completed a Certificate IV in Business.

25. The applicant has provided a Confirmation of Enrolment for the Advanced Diploma of Leadership and Management, which he is enrolled in from 16 June 2019, with a course end date of 14 June 2020.

26. The Tribunal finds that the applicant has a compelling reason for remaining in Australia, namely to obtain a tertiary qualification. The Tribunal gives this some weight against cancelling the visa.

    The extent of compliance with visa conditions

27. As noted above, the applicant did not comply with condition 8202(2) from 29 July 2016 to 18 April 2017, a period of over eight months, which is a considerable period of time to not comply with this condition. The applicant provided evidence at hearing of his attempts to obtain a Confirmation of Enrolment subsequent to the cancellation of his enrolment on 29 July 2016. He gave evidence that he spoke to his education provider, Elite Institute, and asked them to give him further time to pay for his studies. The applicant provided the Tribunal with some documentary evidence to corroborate this, in the form of an email to the college, dated 27 January 2017, where he offers to pay fees owing, as well as advance fees so he can obtain an enrolment. The applicant also provided a copy of an email dated 8 March 2017 from a migration agent, which attaches a letter of offer from Group Colleges Australia for the Bachelor of Business.

28. Based on this evidence the Tribunal is satisfied that the applicant was aware of the need to comply with Condition 8202(2) and took steps to remedy his non-compliance in January 2017, approximately two months prior to the issue of the NOICC.

29. The applicant stated that following the cancellation of his visa by the Delegate, he has held a Bridging visa (Class E). He stated that the conditions of this visa are similar to those for his Student visa, including a work limitation of 40 hours per fortnight. In addition he is unable to travel. The applicant told the Tribunal that he has complied with the conditions of this visa. There is no evidence before the Tribunal to suggest the applicant has breached his work limitation condition in his Student visa or his Bridging visa. I give this some weight against cancelling the visa.

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

30. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated that his father is about 54 or 55 and told him that he needs to study so he can obtain the skills required to look after his business. The applicant stated that his father had hopes that he would help with the business and he has no-one else who is able to assist him with it. He stated that if he is unable to obtain a qualification in Australia his father’s hopes and dreams will be ruined. In addition, the significant financial investment which his father has made will be lost.

31. The applicant has not obtained any tertiary qualifications in Pakistan. He stated that he is now 26 and if he goes back to Pakistan without a qualification then he will have nothing. He stated that he wishes to obtain at least one qualification before he returns to Pakistan, which is why he wishes to have the opportunity to study the Advanced Diploma of Leadership and Management for one year.

32. The Tribunal is satisfied that the applicant and his family would experience some hardship if the visa is cancelled. I give this some weight against cancelling the visa.

    The 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

33. The applicant first arrived in Australia in February 2014. He gave evidence that prior to arriving in Australia he was enrolled in a Bachelor of Accounting. The stated that he had been told by his education agent that he had paid all of his fees to allow him to commence these studies, but when the applicant arrived in Australia and attended the college he found that his fees had not been paid and he had been misguided by his agent. The applicant stated that the agent had also told him that semesters at this college were six months in duration, whereas they were in fact of three months duration, and the fees he had paid would not be sufficient to cover the course.

34. The applicant stated that after these events he sought advice from another education agent and changed colleges. He told the Tribunal that he was advised by this education agent to enrol in an Advanced Diploma of Accounting, rather than a Bachelor degree. The applicant stated that he was unhappy with this as he had come to Australia to obtain a Bachelor degree, and that this agent also took money from him, and after this he lost trust in migration agents.

35. The applicant stated that following this he sought advice from a third migration agent, who organised an enrolment for him in a Bachelor of Business (Professional Accounting) at Elite College. The applicant stated that he passed five units of this course.

36. The applicant stated that in 2016 he returned to Pakistan for a vacation of two months duration. After his return to Australia, his father’s business suffered a serious loss and he was unable to pay his fees. The applicant told the Tribunal that this situation lasted approximately six months. He told the Tribunal that he went to his college and asked them not to cancel his Confirmation of Enrolment and to allow him some time to pay his fees, but he was told by the college’s marketing representative that his Confirmation of Enrolment had been cancelled.

37. The applicant stated that following this he went to see a fourth migration agent in Parramatta. The applicant told the Tribunal that he gave this agent $5,000 and asked him to assist him to obtain admission in a course. The applicant stated that the agent did not provide him with receipts. The agent told him that he had obtained an offer letter from Group Colleges Australia. The applicant stated that he said asked the agent to obtain a Confirmation of Enrolment, as without it he would be in breach of his visa conditions, however the agent told him that the fees of $5000 were for obtaining the letter of offer and he would have to pay a further amount to obtain a Confirmation of Enrolment. The applicant stated that he requested a refund of the fees paid, but the agent refused.

38. The applicant told the Tribunal that following this he was contacted by the Department with the Notice of Intention to Consider Cancellation (NOICC) of his visa. He stated that the agent advised him to sign a form appointing the agent as his representative, which he states he never should have signed. He signed a blank form and provided it to the agent. He told the Tribunal that subsequent to this the agent provided the Department with a response to the NOICC, which he was not consulted about. He stated that the agent wrote it and put the applicant’s name to it and sent it to the Department without his authorisation. The applicant told the Tribunal that the agent had not asked him much, and that the applicant had told him that his father had undergone financial difficulties, but none of this was put into the response to the NOICC.

39. The applicant told the Tribunal that after this he sought advice from another migration agent. This agent obtained an enrolment for the applicant in the Certificate IV in Business at Australis Institute, which he completed. The applicant stated that he came to Australia to study a Bachelor degree and was disappointed with the efforts which the various agents had made on his behalf, though everywhere he went for advice he was told the same things. The applicant told the Tribunal that he paid this agent $3000, yet he received no receipt.

1. The applicant stated that he went to Australis Institute himself, but was told that a particular agent looks after students who attend the college.

2. The applicant also gave evidence that in 2018 he again tried to secure enrolment into a Bachelor degree. He contacted an agent who obtained enrolment for him in a non-award course of Bachelor of Business (Professional Accounting) at Elite Education Institute, for which he would have to pay fees and for which he would not obtain a Confirmation of Enrolment.

3. In summary, the applicant claims that the following circumstances led to the grounds for cancellation existing and were beyond his control:

   a.The short-term financial hardship which his father’s business experienced in 2016, which meant the applicant was unable to pay his course fees; and

   b.The behaviour of education agents, whom he stated misguiding him, took money for services which were not provided, and did not offer him enrolments in satisfactory courses.

4. At the hearing the Tribunal questioned the applicant as to how he allowed himself to be continually misguided by the services and the behaviour of agents for a period of approximately three years. The applicant told the Tribunal that he admitted his mistakes in this process, including that he now realised the need to obtain receipts for services provided. He however stated that he had been inexperienced in what was acceptable process in Australia and had placed faith in the agents, given their roles and experience.

5. The Tribunal questioned the applicant as to whether he had any email correspondence with these agents, or copies of correspondence from colleges, which might support the above claims. In addition, the Tribunal questioned the applicant as to whether he had any documents which support his claims of the financial hardship which his father’s business experienced in 2016. On 18 June 2019, the applicant provided copies of emails between himself and Elite College, a migration agent and an accountant. He also provided documents relating to the financial situation of his father’s business in 2016.

6. In relation to the applicant’s father’s financial situation in 2016, the Tribunal is satisfied, based on the documents provided, that they support the applicant’s claims as to the existence of his father’s agricultural business and the financial difficulties encountered in 2016. The Tribunal notes in particular a survey report dated 12 June 2019, with a certified English translation, which confirms that the applicant’s father’s land experienced drought due to water shortage, which affected the production of crops.

7. While the financial difficulties which the applicant gave evidence of may themselves have given rise to a ground for cancellation of his visa as the circumstances which permitted the grant of the visa (the financial capacity to undertake study) ceased to exist, the Tribunal is satisfied that the applicant attempted to mitigate this situation by contacting his education provider and requesting an extension of time to provide fees. The applicant gave evidence that despite this, the education provider cancelled his enrolment.

8. The applicant has not provided the Tribunal with any documentary evidence to corroborate discussions he had with his education provider prior to the cancellation of his enrolment in July 2016, though he provided a copy of an email he sent to the education provider in January 2017, in which he offered to pay outstanding fees and advance fees. The applicant made this offer with the purpose of obtaining re-enrolment. The response from the education provider’s marketing representative, dated 5 February 2017, was ‘We note your CoE was cancelled. Best wishes’. The Tribunal finds this response from the education provider was unhelpful and contributed to the applicant remaining unenrolled after February 2017.

9. Following the hearing, the applicant also provided the Tribunal with a copy of an email from a migration agent on 8 March 2017, attaching a letter of offer from Group Colleges Australia for a Bachelor of Business. This is consistent with the applicant’s evidence at hearing, and supports his claims that he attempted to obtain a fresh Confirmation of Enrolment, prior to contact from the Department in the form of the NOICC, which was sent on 24 March 2017.

10. The Tribunal notes that the response to the NOICC, provided to the Department on 29 March 2017, makes no mention of the financial distress which the applicant claims is his chief reason for not being able to maintain his enrolment in 2016. At the hearing the applicant, without prompting from the Tribunal, explained that he did not authorise the statement which was provided to the Department in response to the NOICC. He stated that he was asked by a migration agent to sign a blank Form 956, which he did. The applicant provided the Tribunal with a copy of this signed form. The Tribunal notes the NOICC was emailed to the Department by a migration agent and the statement is unsigned. The statement provided is generic and there is little in it which is suggestive of the applicant’s personal circumstances. The Tribunal accepts the applicant’s claim that he did not authorise this statement, and therefore the Tribunal gives the statement no weight in considering the applicant’s claims.

11. While the applicant did not provide documentary evidence to corroborate all of his claims as to the services he had received from migration agents, the Tribunal is satisfied that the documents that he has supplied are consistent with the claims he made in his oral evidence. Overall, the Tribunal found the applicant to be a candid witness, who answered questions openly, and who expressed a degree of frustration and exhaustion in his dealings with certain migration agents, which is consistent with his evidence of the difficulties he has encountered.

12. Based on the above evidence, the Tribunal is satisfied that the initial event which resulted in the circumstances in which the ground for cancellation arose was the financial difficulties encountered by the applicant’s father. The Tribunal is satisfied that the applicant attempted to mitigate these circumstances by speaking to his education provider to obtain further time to pay his fees. The Tribunal is also satisfied that when the applicant’s father’s financial situation improved in 2017, the applicant contacted his former education provider and an agent to try to obtain fresh enrolments. The Tribunal notes the unhelpful response provided by the education provider. The Tribunal is prepared to accept the applicant’s evidence with respect to the unsatisfactory dealings with the agent, given documentary evidence has been supplied of dealings with an agent at that time.

13. The applicant conceded at hearing that his inexperience meant that he was taken advantage of, and the Tribunal finds that this inexperience and naïve trust is one of the factors which contributed to the circumstances in which the ground for cancellation arose. The Tribunal is also concerned that the applicant did not sought further advice from other agents or from the Department, given he had concerns with the advice he had received, but also takes into account the money the applicant expended on education services which were not to his satisfaction. The Tribunal is satisfied that the applicant took steps to re-enrol, but received unhelpful advice from his education provider and migration agents, which meant that his attempts to obtain a fresh Confirmation of Enrolment were delayed. The Tribunal therefore finds that there were some extenuating circumstances which were beyond the visa holder’s control. In light of these findings, the Tribunal gives this some weight against cancelling the visa.

    Past and present behaviour of the visa holder towards the department

14. The applicant confirmed at hearing that he has always cooperated with the Department and there are no issues with his behaviour towards the Department. The Delegate noted in the Department’s decision that the applicant has been cooperative with the Department. The Tribunal has considered the Department’s file and confirms there is no information to suggest any issues with the applicant’s behaviour towards the Department. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

15. 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

16. If the applicant’s Student visa is cancelled he would potentially face becoming an unlawful non-citizen and liable for detention and removal under the Act. However, the Tribunal also notes that the applicant could apply for a Bridging visa in order to remain within the community to finalise his affairs before departing Australia.

17. If the visa is cancelled the applicant would be excluded from making applications for certain types of visa in Australia, and would be unable to complete his proposed studies in the Advanced Diploma in Leadership and Management. The applicant gave evidence of communications with his former education provider and with migration agents which appear to have delayed his attempts to obtain a fresh Confirmation of Enrolment. This includes an offer made in 2018 for the study of a non-award course, which did not meet the applicant’s needs. The applicant also stated that he was seeking justice in light of the circumstances he had encountered. In the circumstances, the Tribunal considers it would be unfair for the applicant to be precluded for three years from applying for a further Student visa to complete his studies. The Tribunal gives this some weight against cancelling 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

18. Not applicable.

    Any other relevant matters

19. The Tribunal finds that there are no other relevant matters and weighs this consideration neither in favour nor against cancelling the visa.

20. The Tribunal notes that it has had the benefit of hearing direct evidence from the applicant, as well as the receipt of a number of additional documents which support the claims he made at hearing. The Tribunal also had the benefit of hearing unprompted evidence from the applicant that he had not authorised the contents of the statement given in response to the NOICC.

21. Although the circumstances in which the ground for cancellation arose were not entirely beyond the visa holder’s control, in that he could have sought further advice from the Department or other migration agents, the Tribunal is satisfied that the applicant attempted to remedy the cancellation of his enrolment by contacting his education provider in January 2017, as well as sought advice from migration agents before the issue of the NOICC. Accordingly, the Tribunal has found that there were some extenuating circumstances and has given this some weight against cancelling the visa. Similarly, the Tribunal gives weight to the applicant’s purpose for his travel to and stay in Australia, which remains to study, and again gives this some weight against cancelling the visa.

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

    DECISION

23. 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.