Sharma (Migration)

[2022] AATA 3990

Sharma (Migration) [2022] AATA 3990 (9 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswinder Sharma

REPRESENTATIVE:  Mr Harpal Singh Bajwa (MARN: 0955800)

CASE NUMBER:  2200728

HOME AFFAIRS REFERENCE(S):          BCC2018/1297265

MEMBER:Penelope Hunter

DATE:9 November 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 09 November 2022 at 10:03am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit and Family Court remittal – genuine student – courses cancelled, periods of non-enrolment and failure to maintain enrolment at same or higher level – discretion to cancel visa – facts conceded – currently enrolled in lower-level course in different subject area – courses available in home country – employment and business opportunity in family-owned premises – parents’ health – inconsistent explanations for enrolments and cancellations – circumstances within and outside applicant’s control – closure of one college – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(fa)(i), (1A), 359A
Migration Regulations 1994 (Cth), r 2.43(1C), (1D), Schedule 8, condition 8202(2)(a), (b)

CASE
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS

application for review

1. This is an application for review of a decision dated 7 August 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 573 Higher Education Sector visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(fa)(i) of the Act on the basis that they were not satisfied that the applicant was a genuine student. The applicant has submitted to the Tribunal a copy of the delegate’s decision record under review. 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 applied to the Tribunal for a review of this decision on 15 August 2018. The applicant was invited to attend a hearing before the Tribunal (differently constituted) and on 30 June 2020, the decision under review was affirmed.

4. The applicant appealed this decision to the Federal Circuit and Family Court of Australia, and orders were made on 14 January 2022, by consent, remitting the matter back to the Tribunal for re-determination.  

5. The applicant appeared before the Tribunal on 25 July 2022, via MS Teams video to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the English and Punjabi languages.

6. The applicant was represented in relation to the review, and his representative participated in the hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   consideration of Claims and evidence

8. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

9. A visa may be cancelled under s 116(1)(fa)(i) if the Minister is satisfied that the holder of a student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s 116(1)(fa)(ii) if the student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.

10. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in s 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with visa conditions… yet has not conducted himself or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]).

11. For matters where the notice of proposed cancellation under s 119 was sent on or after 27 March 2010, there are prescribed matters to which the decision maker may have regard in determining whether the ground for cancellation under s 116(1)(fa) exists: s 116(1A), reg 2.43(1C) and (1D) of the Migration Regulations 1994 (Cth) (the Regulations). The prescribed matters are set out in the attachment to this decision.

12. The applicant was notified of the Department’s intention to consider cancellation (NOICC) on 27 July 2018. The Tribunal is satisfied that the NOICC was validly issued.

13. The applicant provided submissions to the Department in reply on 3 August 2018, which are discussed below.

14. The delegate considered the submissions of the applicant and the supporting documentation and proceeded to cancel the visa on 7 August 2018.

15. The Tribunal discussed the following grounds for cancellation which arose on the material, and which were also identified in the decision record of the delegate:

    1. As at 7 August 2018, the applicant had not completed any course of study in Australia despite having arrived as the holder of a student visa on 31 July 2016.
    2. The applicant was granted his Higher Education Sector (Subclass 573) student visa on the basis of enrolment in a Bachelor degree, being a Bachelor of Business at the University of the Sunshine Coast with a start date of 1 August 2016 and an end date of 15 July 2019. Provider Registration and International Student Management System (PRISMS) records document that this enrolment was cancelled on 18 May 2017. The applicant had not obtained another enrolment prior to 7 August 2018, at the same level as or a higher level than, the registered course for which his Subclass 573 visa was granted. This was a breach of condition 8202 of his visa grant.
    3. The applicant was not enrolled in a course of study between 26 September 2017, when South Pacific Institute cancelled his enrolment in the Certificate III in Commercial Cookery, the Certificate IV in Commercial Cookery and Diploma of Hospitality to 9 April 2018 when Everest Institute of Education approved a further enrolment in a package of courses. The applicant was not enrolled in any course of study for a period of over six months in breach of condition 8202 of his visa.
    4. The applicant departed Australia on 11 April 2018 to 20 May 2018; upon his return, Everest Institute of Education cancelled his enrolment package. The applicant then enrolled in a further package commencing on 2 July 2018. Allowing for the period that the applicant was overseas, there was a period of almost eight months when he was not undertaking any study.

16. The Tribunal discussed these matters with the applicant at hearing. He was invited to make submissions as to whether he disputed the facts as set out above and he conceded the facts of the matters.

17. Therefore on the material before the Tribunal the applicant, as at the date of the delegate’s decision, had demonstrated a failure to abide by the conditions of his visa, had a six-month period of non-enrolment from 26 September 2017 to 8 April 2018, and failed to maintain enrolment at the same level or a higher level than, the registered course for which his Subclass 573 visa was granted. In addition to these breaches of visa conditions, the applicant has had a 12-month period of not studying and there was a failure to complete any courses of study in Australia in the two years since his arrival on 31 July 2016. Further, such an unsatisfactory study record demonstrates that the applicant may not have been committed to his studies, or in Australia for the primary purpose of study. The Tribunal is satisfied that this pattern of conduct is not consistent with a genuine student, and therefore finds that the applicant is not, or is not likely to be, a genuine student.

18. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(fa)(i) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.

    Consideration of discretion

19. 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’.

20. The applicant is a citizen of India. He first arrived in Australia on a Higher Education Subclass 573 student visa valid until 15 September 2019. The Tribunal has considered the oral evidence of the applicant provided at hearing, together with the submissions and documents provided by the applicant to the Department and the Tribunal. This includes the following information:

    i.The applicant’s submission to the Department via his representative dated 3 August 2018, including evidence of the applicant’s travel between 11 April 2018 and 20 May 2018, copies of his Confirmations of Enrolment (CoE), and medical reports including ultrasounds, from Dr Romana and Dr Kamal Sharma dated 18 April 2018 and a copy of a receipt from Orth Care Hospital also dated 18 April 2018.

    ii.Submissions to the Tribunal by the applicant on 14 November 2019, several documents regarding medical treatment for Mrs Manpreet Kaur, an outpatient card for Mr Ashwani Kumar dated 21 July 2018, a statement of attainment for the applicant from South Pacific Institute issued on 28 January 2018, a letter of job offer from Hotel Bahia Fort, signed by ‘manager’.

    iii.Submissions to the Tribunal by the applicant received on 22 July 2022, and further documents including an additional CoE in a Diploma of Hospitality at Nova Institute of Technology with course dates from 25 July 2022 to 22 July 2024 created on 22 July 2022, evidence of the applicant’s education in India, statement of financial support from the applicant’s father including evidence of identity, income, land valuation and bank deposits, identity documents for the applicant’s sister, costs estimates for the construction of premises (identified in index as applicant’s future business plan), statements of Mr Ashwani Sharma and Mrs Manpreet Kaur regarding their medical conditions.

    iv.Post-hearing statement by the applicant received on 26 July 2022 and CoE in a Graduate Diploma of Management at Nova Institute of Technology with course dates from 12 August 2024 to 11 August 2025 created on 25 July 2022.

    The purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia

21. The applicant was granted his student visa to undertake a Bachelor degree in the higher education sector with a visa valid to September 2019. The period of the applicant’s initial visa has now expired and the applicant no longer desires a Bachelor qualification. Arguably there is no compelling need for the applicant to remain in Australia for the purpose for which the visa was granted.

22. The applicant told the Tribunal that he needed to obtain some qualification just to take back to his home country so that he could get a job or start a business. It was noted at the hearing that the applicant had submitted a CoE for a Diploma of Hospitality Management at the Nova Institute of Technology commencing on 25 July 2022. It was noted that the applicant had previously planned tertiary studies in Business, and also when he changed to vocational-level studies he had intended to study Certificates III and IV in Commercial Cookery. The applicant told the Tribunal that he thought this one course would be sufficient for his needs as it encompassed elements of the Certificates III and IV and he has already spent over six years in Australia and did not wish to waste any more time. The Tribunal had concerns that the original purpose of the applicant’s seeking the visa was for tertiary studies that he appears to have abandoned.

23. Following the hearing, the applicant submitted a further CoE in a Graduate Diploma of Management from 12 August 2024 to 11 August 2025, also at the Nova Institute of Technology. In post-hearing submissions it was claimed that this enrolment was obtained to satisfy Department criteria and guidelines. While the applicant may have now obtained enrolment in higher level study, the Tribunal has concerns that this was obtained to address perceived deficiencies in his evidence, and places greater weight on his evidence at hearing. The Tribunal is not satisfied that he genuinely intends to study at this level. It is noted that his submission before the Tribunal in November 2019, included only a diploma-level enrolment.

24. The applicant conceded in his evidence to the Tribunal that there were courses that were available to him in his own country. However he claimed that he was used to the education system in Australia and that better jobs would be available from an Australian qualification. Given claims by the applicant regarding difficulties he has experienced with study in Australia, the Tribunal is not satisfied that the applicant could not readjust to the education system in his home country. It is accepted that Australian qualifications may hold greater value, however it is not the case that the applicant will be without study options. The Tribunal further takes note of the evidence of the applicant that it was his intention on return to open his own restaurant in family-owned premises. He has further presented plans of its layout and has sought to demonstrate that his family have the resources to assist him establish the business in existing premises. It would appear that he already has an employment and business opportunity that does not require an overseas qualification.

25. The Tribunal has considered the applicant’s evidence, however on the material before it does not consider that the applicant has a compelling need to remain in Australia, and places no weight in the applicant’s favour in this regard.

    The extent of compliance with visa conditions

26. The applicant has not complied with his visa conditions and these were part of the reason that the grounds for cancellation arose.

27. He did not comply with condition 8202(2)(a) and was not enrolled in a registered course of study between 26 September 2017 and 8 April 2018. A period of over six months.

28. His visa was also subject to condition 8202(2)(b), that he must maintain enrolment in a course that once completed would provide a qualification from the AQF level which is the same level or higher than for which the visa was granted. He had not maintained enrolment at the higher education sector or Bachelor level for approximately 15 months before his visa was cancelled.

29. The applicant confirmed at the hearing he was aware that his visa was granted with conditions. He further confirmed that he was aware that this included that he had to study. The applicant claimed that he did not know about condition 8202(2)(b). It is considered that it is incumbent on the applicant as the visa holder to inform himself of the conditions of the visa to which he was subject.

30. There are no further incidents of non-compliance of which the Tribunal is aware. However, it is considered that his period of non-compliance with conditions 8202(2)(a) and 8202(2)(b) was significant.

31. The Tribunal gives this factor no weight in favour of the applicant.

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

32. At the hearing the applicant spoke of the shame he will endure. He had concerns for his parents’ medical conditions and did not wish to give them more stress. Particularly his father who has a heart condition. The Tribunal accepts that the applicant does not wish to distress his family; it is however noted that his father’s condition was present before he arrived in Australia, and his mother has responded well to treatment for her cancer. They are not conditions caused by a prospective visa cancellation for the applicant.

33. The applicant further claimed that he had a responsibility as a son to take care of his parents. The applicant also submitted that he had suffered by not being able to complete qualifications in Australia and he suggested that he may have further mental health problems if he was required to return to India without any qualification.

34. The Tribunal notes that the applicant still has study options available to him in India. There is no medical evidence from the applicant to support his claims of prospective mental health problems.  His family still have premises in which he could operate a future business. It would appear from the financial and property documents submitted that they have the resources to assist him to establish this business and provide for his parents in their old age. The applicant will also be present to assist his parents with any medical conditions, companionship or appointments, and provide care.

35. While it is accepted that the applicant does not yet wish to return to India, he claims that it is his intention in any event to do so in the future. On the material before it, the Tribunal is not satisfied that the applicant, or consequently members of his family, will face significant financial, psychological or emotional hardship if he returned to India.

36. The Tribunal gives this consideration low weight in favour of the applicant.

    Circumstances in which ground of cancellation arose

37. In his submissions of 22 July 2022 to the Tribunal, the applicant claimed that he was not able to manage the workload while undertaking the Bachelor of Business at the University of the Sunshine Coast. At the hearing the Tribunal discussed his experience during this course and he said that he could not understand anything. The Tribunal noted that he had been enrolled in two semesters and the applicant said that he just attended classes but was not able to participate. When asked to identify the unit of study he had undertaken the applicant claimed that there were business and accounting subjects. The applicant claimed to the Tribunal that due to his performance, the University of the Sunshine Coast cancelled his enrolment. When asked if the University wrote to him or reported him for unsatisfactory academic performance the applicant claimed that he did not know.

38. The Tribunal raised with the applicant his claims in his previous submissions of November 2019 to the Tribunal in which he provided a different reason for the cancellation of enrolment. Previously he said that it had happened because of the non-payment of fees. In this statement received by the Tribunal on 15 November 2019, the applicant had written, ‘I had duly paid the academic fees for Semester-1. However I was not informed about the due dates for payment of fees for Semester-11. Due to this lack of information the educational institute cancelled my enrolment’. The Tribunal noted that this explanation was not consistent with the reason he was currently claiming for his enrolment being cancelled and invited comment from the applicant. In response the applicant said that he did not recall making this statement.

39. Further, pursuant to the provisions of s 359A of the Act the Tribunal invited the applicant to comment on information contained in his PRISMS records regarding his enrolment in the Bachelor of Business; the particular information in this record was that his enrolment was cancelled in this course because the ‘student notified of the cessation of studies’. The applicant was informed that this was important because it was not consistent with his current claim that the institution cancelled his enrolment due to his performance, or his previous claim that it was due to non-payment of fees, and consequently if the Tribunal relied upon it, it may have some concerns about the reliability and credibility of his evidence. The applicant sought additional time to respond. The Tribunal allowed until the following day for further submissions and in doing so noted that this was also information that had been set out in the delegate’s decision record. In his post-hearing submissions the applicant did not address the inconsistency and again claimed that he was not able to perform academically.

1. The Tribunal further invited comment from the applicant to the information contained in the delegate’s decision record that he had enrolled in the Certificate III in Commercial Cookery at South Pacific Institute from 20 February 2017, and his enrolment in the Bachelor of Business at the University of the Sunshine Coast was only cancelled as of 18 May 2017. The Tribunal put to the applicant that the timing of these events did not appear consistent with his claims that his cessation of tertiary study was outside his control, and it was recorded that he started his Certificate III three months before his higher education studies were cancelled. The applicant did not accept the dates as presented by the Tribunal and maintained his claim that the University of the Sunshine Coast had cancelled his enrolment and then he had to seek another course.

2. The applicant was also asked whether he had sought any assistance from the University of the Sunshine Coast with his academic difficulties or sought a deferral of his studies or to re-take classes. The applicant claimed that he did not.

3. Reviewing the totality of the information, the Tribunal has some concerns about the reliability of the information presented by the applicant as to why he ceased studying at the higher education sector level. It is also not satisfied that the cancellation of his enrolment at the University of the Sunshine Coast was a circumstance outside his control. Although the applicant claims he was unaware of the requirement of condition 8202(2)(b) on his visa the Tribunal considers that it is the responsibility of the applicant to understand those conditions.

4. The applicant told the Tribunal that while studying at South Pacific Institute one day he went to the college and no one was there. When asked by the Tribunal he said that he was attending regularly at the time at least two days per week. It was only when he contacted fellow classmates that he became aware that South Pacific Institute had closed. Again pursuant to the provisions of s 359A of the Act the Tribunal invited the applicant to comment on evidence that he had provided during his first Tribunal hearing on 18 November 2019 that he may not have been attending classes for about one and a half months due to problems with his back. The applicant was informed that this earlier evidence may be considered inconsistent with his current evidence and consequently the Tribunal may have concerns about his reliability as a witness, which may be a reason or a part of the reason for the Tribunal not accepting his claims and the decision under review being affirmed. The applicant elected to respond immediately and conceded that he had missed some classes. He said that it had been a number of years since it happened and he was not sure about things. The Tribunal has reviewed the applicant’s statement of attainment from South Pacific Institute and accepts that he completed eight units of the course while enrolled between February 2017 and September 2017. The Tribunal also discussed with the applicant the information contained on his PRISMS records as set out in the decision record of the delegate that his enrolment at South Pacific Institute was cancelled because ‘student notified of cessation of studies’, not because of the closure of the Institute or that the provider was unable to deliver the course. The applicant claimed that this was incorrect. The Tribunal has some lingering concerns but ultimately will provide the applicant with the benefit of the doubt and accepts that South Pacific Institute closing was an event outside his control. There remain however some concerns about his level of attendance and commitment to these studies.

5. The applicant maintained that it took him a long time to obtain further enrolment because he was waiting on the assistance of the administration of South Pacific Institute to enrol him in another course. The applicant was asked what timeframe was given for this and he said that there was none. He claimed that they made assurances that this would be taken care of; the communication was by way of a phone call from the Institute’s administration staff. In answer to the questions of the Tribunal he said that he did not have any record of these assurances. He claimed that he did not seek assistance from anyone because he was new in Australia and did not know much about the system. However, the Tribunal notes that he had been studying in Australia for over a year by this time and had already managed to change enrolments independently when he ceased studying at the University of the Sunshine Coast. The applicant had presented evidence that his older sister was also in Australia studying at the time, but he claimed that he did not seek any guidance from her as she was also only new to Australia. The applicant conceded that he was aware that he should be enrolled as a student but claimed that he did not know that it would be a reason for his visa to be cancelled. The applicant told the Tribunal at the hearing that his next enrolment at Everest Institute in April 2018 for a course starting in May 2018, was arranged by the administrative staff from South Pacific Institute. There is no corroborative evidence before the Tribunal in relation to this. It is noted that his agent’s submissions to the Department state that ‘he found Everest Institute’. Further, the applicant’s submission to the Tribunal of 22 July 2022, sets out ‘I started search for another college/education provider which offered the same courses. I eventually found Everest Institute…’. Overall, the Tribunal is not satisfied that the length of time that the applicant was without enrolment was a circumstance outside his control.

6. The delegate set out concerns in their decision record that the applicant had obtained this enrolment to facilitate his departure from Australia in April 2018. The applicant claimed that his travel was urgently arranged due to back issues. The Tribunal has reviewed the medical evidence and accepts that the applicant did seek treatment for his back while in India. It is also noted that the investigations presented from Dr Romana on 18 April 2018 and Dr Kamal Sharma, also dated 18 April 2018, indicate normal findings. In these circumstances the Tribunal had concerns as to how much weight could be placed on claims by the applicant that his back issues prevented him from studying, and when asked to comment on this the applicant declined at the hearing.

7. Upon his return to Australia the applicant said that he received email communication from Everest Institute that his course was deferred and it would start the following month, then they cancelled his enrolment without notice one month later. The applicant has not presented any evidence to corroborate this. The applicant acknowledged in his evidence and submissions that his enrolment was cancelled due to ‘non commencement of studies’. The delegate further records that the cancellation occurred on 21 June 2018, well after the applicant had returned to Australia. The Tribunal has difficulty accepting that this cancellation was also an event outside the control of the applicant. It subsequently transpired that when the applicant obtained his next enrolment at Academies Australasia, the applicant had not been studying for a period of over eight months, allowing for his time in India. The Tribunal is also not satisfied that this was a circumstance outside the control of the applicant.

8. Considering the totality of the applicant’s claims regarding the circumstances in which the grounds for cancellation arose, the Tribunal accepts that the applicant was impacted by the closure of South Pacific Institute. Overall however, it does not accept that all the events advanced by the applicant resulted in circumstances outside his control leading to the grounds for cancellation of the visa. Therefore the Tribunal only attributes them low weight in favour of the applicant.

   Past and present behaviour of the visa holder towards the Department

9. There is no evidence that the applicant has been uncooperative in his dealings with the Department in the past. The Tribunal gives this factor some weight in the applicant’s favour.

   Whether there would be consequential cancellations under s 140

10. The applicant did not identify for the Tribunal that he had a partner or any dependents. Accordingly the Tribunal places no weight on this consideration either in favour of or adversely against the visa remaining cancelled.

    Whether there are mandatory legal consequences arising from cancellation

11. If the applicant no longer had a valid visa he would be required to depart Australia. He would further be subject to s 48 of the Act which would limit his options for returning to Australia or applying for other visas. If the applicant himself did not take steps to return he could face consequences such as detention and removal from Australia.

12. If the visa is cancelled the applicant would continue to hold a bridging visa for a short time to allow him to finalise his affairs before he departed. Upon questioning by the Tribunal the applicant said that if the visa was cancelled and he had exhausted all avenues of review he would voluntarily depart Australia. In these circumstances, on his evidence, it is therefore unlikely that the applicant would face detention and removal.

13. The Tribunal gives this consideration neutral weight.

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

14. The applicant is a citizen of India. He does not have any dependents. He has not made any claims to the Department or the Tribunal that he has any fears of returning to India.

15. He has claimed that returning to India without an Australian qualification may cause some emotional harm. The Tribunal accepts that if the visa remains cancelled it will have an emotional impact upon the applicant. It is not accepted that this type of harm would amount to any grounds for a protection claim or trigger any other international obligation.

16. The Tribunal places no weight on this factor.

17. The applicant did not advance any other relevant matters.

18. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant individually and cumulatively. It is accepted that the applicant wishes to remain in Australia, yet for the reasons set out above, it has concerns as to his commitment to further study. It is not demonstrated that he has a compelling need to remain in Australia, or that there are reasons for him to remain that are consistent with the original visa grant. The Tribunal has placed a low weight on the evidence before it in relation to the circumstances giving rise to the cancellation. It is not persuaded by the material advanced by the applicant that it should be greater than this. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.

19. Overall, the Tribunal finds, considering the material before it as a whole, that the visa should be cancelled.

    decision

20. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Penelope Hunter
    Member

    
    

    ATTACHMENT – Extract from reg 2.43 of the Migration Regulations 1994

    …

    (1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.

    (1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:

    (a)because of the conduct of the holder; or

    (b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or

    (c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or

    (d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.