Sharma (Migration)

[2019] AATA 2439

Sharma (Migration) [2019] AATA 2439 (26 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hirday Sharma

CASE NUMBER:  1725911

HOME AFFAIRS REFERENCE(S):           BCC2017/2919682

MEMBER:Joseph Lindsay

DATE:26 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 June 2019 at 2:13pm

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 – loss of focus – family’s health issues – responsibility of visa holder – reasonable steps to maintain enrolment – PRISMS record – non-payment of fees – decision under review affirmed

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 17 October 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 applicant attended the hearing before the Tribunal on 8 April 2019. The applicant was not represented at the hearing. The applicant spoke to the Tribunal in English and did not require the use of an interpreter. 

3. 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

4. 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?

5. 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).

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

7. The Tribunal asked the applicant about his enrolment history in Australia. In response, the applicant indicated that he came to Australia in July 2014. He said he meant to do a Diploma of Management and an Advanced Diploma of Management. He indicated the study was a bit hard for him to get into and he thought he didn’t understand all of it. He indicated that he spoke to an agent and decided to change his studies to cookery.

8. He then indicated that he did not pass his Diploma of Management because he could not finish all of his assignments. He indicated he could not pass one of his subjects. He then indicated that he did not do his Advanced Diploma of Management.

9. He then indicated that in July 2015 he went to Stotts College and it enrolled in a Certificate III in Commercial Cookery. He indicated that he did not finish his Certificate III in Commercial Cookery and only stayed at Stotts College for three months. He indicated he then went to Brighton Institute of Technology to do a Certificate III in Commercial Cookery and Certificate IV in Commercial Cookery. He claimed he did finish the Certificate III in Commercial Cookery.

10. He had also initially enrolled in a Bachelor of Business and then later enrolled in another Bachelor of Business at another provider.

11. The Tribunal put to the applicant that what he had said in the hearing about his course enrolment history was broadly consistent with his Provider Registration and International Student Management System (PRISMS) record.

12. In the hearing, the Tribunal referred to information in the applicant’s decision record from the Department dated 17 October 2017 indicating that he had not been enrolled in a registered course of study since 15 February 2017. In his response to the Tribunal, the applicant agreed that he had not been enrolled in a registered course of study since 15 February 2017.

13. On the evidence before the Tribunal, the Tribunal finds that the applicant has not been enrolled in a registered course of study since 15 February 2017. Accordingly, the applicant was not enrolled in a registered course and the applicant has not complied with condition 8202(2)(a). The Tribunal finds that the ground for cancellation of the applicant’s student visa is established in respect to s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

14. 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 circumstances in which the ground for cancellation arose

15. The Tribunal asked the applicant what was happening to him in the early part of 2017 that led to him not being enrolled anymore. In response he indicated that up until the early part of 2017 he was doing fine but then his family called him with some bad news and told him that his sister was sick. He indicated his family didn’t tell him much about his sister’s health condition but that his sister was now doing fine. He indicated that as a result of hearing this news about his sister he lost his focus.

16. The Tribunal asked the applicant if he was positive that he completed a Certificate III in Commercial Cookery and in response he said he did finish the Certificate III in Commercial Cookery, but then he indicated he might have failed his Certificate III in Commercial Cookery.

17. He indicated that around early 2017 his father also got sick, he lost himself, he was young at the time these events occurred, he came from a different culture, he was all by himself in Australia and had no one to guide him and tell him what to do. The applicant indicated that his father is now doing okay and that his sister is improving.

18. The applicant indicated he did not tell either his course provider or the Department what was happening to him because he did not know the importance of communication at that point in time.

19. The Tribunal put to the applicant that as the visa holder the Tribunal would reasonably expect the applicant was responsible for maintaining his enrolment in his course of study and that the Tribunal would reasonably expect that the applicant would tell the Department and his course provider what was happening to him with a view to maintaining his student enrolment.

20. In response he said he was sorry but at that point of time he didn’t actually know that he could do it and that there was just so much going on that he didn’t even work, but just stayed at home. He indicated he did not know that he could go and speak to his course provider or the Department.

21. The Tribunal referred to the applicant’s response to the Department that stated:

    Thank you very much for providing me opportunity to explain my circumstances before making any unfavorable decisions for my future.

    I come from Jammu and kashmir state of India (which is in war like situation most of the time due to conflict between terorists and Indian Army). I belong to a Kashmiri pandit (Hindu) and are always worried about our wellbeing due to terrorists activity in Jammu and Kashmir. In my family I hv father , mother and one younger sister Priya Sharma; In jan 2017 She was diagonised with a Life threatening disease ; Tumour in her brain cells. This news was very very devastating to me and my parents ; the day I got to know about this news I am just crying and praying to God for her well being.

    As she is the only sibling in my family I am very much attached to her. Due to this I was unable to focus on my self ....I completely cutt off myself from everyone in Mel so that I can speak to her and spend more time with her and give her assurance and confidence that she can live a long healthy life. I forgot to eat, to sleep and was just depressed.

    I wanted to visit India nd meet my little sister ; however my parents advised me not to come back as you never know what can happen in jammu and Kaskmir. I requested them so much ; however my parents said No. This broke my heart Further!

    I was emotionally and mentally exhausted in coming months. In April 2017 again we got a bad news; My father was hospitalised in emergency due to his deteiorating health as my sister health effected him so much. My mom and I was just crying over the phone all the time. We all were scared.

    I was so much disappointed and depressed with all these circumstances ,which has lead me completely dioriented. Looking at my condition my few friends advised me to see Physcologist so that I can overcome this hardtime with assistance and take some care about my health; which I did eventually.

    I hv requested my mother to send me doctor papers in regards to my sister and my father hospitalization ( I hv attached one letter from her doctor of jan 2017).

    I hv also requested Physcologist in Mel to gv me appointment so that I can provide you some Medical letter from him too advising my health and situation as with his help I am improving day by day to lead a normal life by overcoming my fear and depression and focusing on my parents dream and my career dreams.

    I hv always maintained all my visa conditions in Aus. I hv always notified my contact details and adress to my education providr, I hv always worked 20 hours per week as per my student visa, I hv passed all my study whatever I hv undertaken in Aus on my stufdent visa, Always had OSHC. This is the first time any condition being breached on my Student visa in Aus ; thats too because of circumstances beyond my control which effected me greatly and my parents greatly.

    "Everyone deserve a second chance" - This is the phrase I hv listen in Aus I hope to get second chance to fix my life in Aus and finish my studies and Go back and make a career in Another state in India where my sister can get better treatment and my parents can retire and live with me. I am the only son of my parents and I have to be ready to take responsibilty of my family otherwise no one will be happy in my family. Now in this difficult time I have understood the importance of opportunity of studying in Aus and fulfilling my parents dreams so that atleast they are tension free for one chilld of their.

    Kindly give me one chance to fix my life please please. I would be very grateful to you.

    I am only hope for my parents.

    I promise never to let any circumstances to become hurdle in my career pathway.

    Kindly gv me one last chance.

    Incase of any queries plz send me an email.

22. The Tribunal asked the applicant if he went to a psychologist and he responded “actually no.” He indicated he was not a big fan of doctors, psychologists and “things like that”. The Tribunal asked the applicant again if he went to a psychologist and he said “Nah.”

23. The Tribunal referred to the statutory declaration the applicant gave to the Tribunal dated 4 April 2019, in which he stated:

    1. I, Hirday Sharma, came to Australia with a spark in my eyes to gain an overseas qualification and earn an Australian Qualification as Australian Studies are considered one of the best in our country and we can secure good package if we have completed studies over here in Australia.

    2. I came to study Diploma of management leading to Advance diploma of management and Bachelor of Business from Australian Academies Polytechnic in July 2014.

    3. As I was very new, I could not adjust in Australia. I tried my best to cope up with the pressure of studies, work and house chores but was finding it very difficult. I studied with Australian Academies Polytechnic till July 2015 in Diploma of Management. But unfortunately, because of the high level of Australian qualification I was not able to co-op up with Australian education system. I found the studies really hard and had to quit at the college.

    4. After the careful consideration I decided to quit my current course and decided to enroll with another provider where they are meeting my requirements and of my level of understanding.

    5. I enrolled with Stott's college in July 2015 for the same and studied there till September 2015. I found it far more difficult as compared to Australian Academies Polytechnic and their timetable was not suiting me at all as one class was finish quite late in the evening and I was scared to go back home by myself.

    6. Again, I was in dilemma to decide what to do because if I will be keep on continues changes in my course like this, I won't be able to fulfil my parent's desire. I started feeling depressed at that point of time.

    7. So, after the deep thoughts and serious conversation with my family and friends, they suggested me to go from scratch. They advised me to take things slowly and gradually and I will reach my destination.

    8. I did the same and enrolled myself for certificate III in commercial cookery leading to certificate IV of commercial cookery and then Diploma of Hospitality management as a packaged program from Brighton Institute of Technology.

    9. I really liked this college. Their classes were all in the morning and I was attending it very well. I passed all of my assignments and was going very well. I started the course and was studying in the college till February 2017

    10. In January 2017, I got a call from India and came to know that my sister is in serious condition. She was diagnosed with a Life-threatening disease; Tumour in her brain cells. This news was very devastating to me and my parents. The day I got to know about this news, I was just crying and praying to God for her wellbeing, as she is the only sibling in my family and I am very much attached to her. Due to this I was unable to focus on myself. I completely cut off myself from everyone in Melbourne. So that I can speak to her and spend more time with her and give her assurance and confidence that she can live a long healthy life. I forgot to eat, to sleep and was just depressed.

    11. I stopped going to school, work and stopped meeting my friends. I just sat at home and was just talking to her and my parents all the time. I did not got to school at that time and they did cancel my COE as well.

    12. But as I was on Australian qualification level 6 and didn't maintained the level of qualification, I got a cancellation from the department in regards to my visa.

    13. I was not able to focus on anything because I met with very unfortunate situation where I got to know my younger sister is struggling with a life-threatening disease and later on my father got very sick as well.

    14. I was shattered and scared to give any bad thought to this. I did not enrol in any studies at that time and a lot of time lapsed.

    15. My visa was cancelled in September 2017. Later on, everything got well and I wanted to study, but I could not get any COE from any college as I did not have study rights. No college was providing me COE and since then I am unable to study.

    16. I wanted to study as this was my dream to complete a qualification from Australia, but it was shattered when my visa was cancelled.

    17. I am very close to my family, and it has been extremely difficult for me to stay away from them all these years. I have property in my name in India, where I wish to start my own business. All this time my family has been extremely worried about me, due to my health, but they never stopped supporting me. Even now, I am not working, and my friends and parents are providing me with complete financial support. I wish to make all of this worth it for them and want to go back to India having completed my education successfully despite all these hardships.

    18. If you ask I can get, properties' documents from my parent's stating that all the properties in their name will be inherited by me. My whole family is in India and I cannot stay without them. I want to finish my course and go back to them as there is no one over here in Australia, which as per me is the strongest tie I have with my family and my home country. My parents have always supported me in every phase of my life be it emotional or financial. My parents will support me fully for my future studies and business as well. If you need any more explanation or documentation, please let me know so that I can provide you in time.

    19. I request you to kindly grant me this opportunity. I would be forever indebted to the Australian government for giving me this golden opportunity and helping me pave my way to success.

24. The Tribunal put to the applicant that in his statutory declaration he referred to himself getting depressed during his studies in 2015. In response the applicant indicated that he was depressed because he was having trouble with his studies at that time. He indicated that it was a time of change for him and he was worried that he was wasting his time. He was worried about where he stood compared to all the other kids in school.

25. He confirmed he was never diagnosed with any depression, but that he was just having feelings of feeling down. He said that he was not a fan of going to psychiatrists and indicated he had doubts as to how much help consulting a psychiatrist would be.

26. The Tribunal put information to the applicant in accordance with s.359AA of the Act that his PRISMS record indicated that as of 15 February 2017 his enrolment in the Certificate III in Commercial Cookery was cancelled due to “non-payment of fees.” The Tribunal put to the applicant that what he had said in relation to his study of his Certificate III in Commercial Cookery appeared to be inconsistent with the information in the PRISMS record. The Tribunal put to the applicant that the inconsistent information he provided may indicate that he has not given credible information in respect to his studies. The applicant did not want additional time to respond.

27. In response the applicant said he paid his fees for the first six months but then when he stopped going to college there was no further contact from the college indicating he had to pay his fees. He indicated he did not even know until now that that was the reason why his course provider cancelled his course enrolment.

28. The Tribunal put to the applicant the Tribunal would reasonably expect that the applicant as the visa holder would undertake due diligence and make reasonable enquiries to his course provider regarding all the circumstances of his enrolment including paying his course fees.

29. In response he indicated that at that time he was not very worried about his studies because everything in his life was just going downhill and he thought he could take a break. He indicated he is the type of person who stays quiet when something bad happens to him and that if he communicated he would have been somewhere better in his life at this point in time.

30. The Tribunal put information to the applicant in accordance with s.359AA of the Act that his PRISMS record indicated that his previous enrolment in a Certificate III in Commercial Cookery was cancelled by his course provider on 13 November 2015 due to “non-payment of fees.” The Tribunal put to the applicant that this information was relevant to the review because it showed more than one instance where he had not completed his Certificate III in Commercial Cookery due to non-payment of fees. The Tribunal put to the applicant that, subject to his comments, this information may lead the Tribunal to find that the reason why he did not do his Certificate III in Commercial Cookery was because he did not pay his fees and this may be a reason or part of the reason for the Tribunal to affirm the decision under review. The applicant did not want additional time to respond and he did not want an adjournment.

1. In response the applicant indicated he did not know he had any fees to pay at that time. He indicated he thought he paid his fees at the start of the course but he did not check for a long time. He then said the immigration agent he had at the time misguided him a lot. The applicant then admitted that he knew that as the student it was his responsibility to manage his course enrolment.

2. The Tribunal put to the applicant that he could reasonably have approached his course provider to seek information in relation to his student enrolment. The Tribunal indicated to the applicant that his agent could do this task on his behalf but ultimately that his enrolment was his responsibility. The applicant indicated in response that he should have gone to his course provider and talked to them properly. He indicated that he thought he did make some sort of payment to them but then he should have checked. He indicated he was sorry that it looked like he was being careless but he did not know he had the payment to make.

3. The Tribunal put to the applicant that he did re-enrol in the Certificate III in Commercial Cookery but again his course was cancelled (in 2017) due to non-payment of fees. The Tribunal put to the applicant that he then remained un-enrolled for a period of time and then the Department sent him a Notice of Intent to Consider Cancellation (NOICC).

4. The applicant indicated to the Tribunal that he knew that it was many months from the time his course was cancelled in February 2017 until the time he received the NOICC from the Department on 26 September 2017.

5. In respect of the above, the Tribunal makes the following findings:

   ·The applicant was granted his student visa on 16 July 2014.

   ·The applicant ceased to be enrolled in a registered course of study on 15 February 2017.

   ·There were two instances, on 13 November 2015 and 15 February 2017, where the applicant’s course provider cancelled the applicant’s enrolment due to non-payment of fees. 

   ·Since he obtained his student visa in 2014, the applicant has not completed any of the courses in which he had enrolled.

   ·The applicant remained un-enrolled in a registered course of study for approximately seven months until the Department provided the applicant a NOICC.

   ·At no time did the applicant contact either his course provider or the Department about his situation. 

6. In respect to the two instances, on 13 November 2015 and 15 February 2017, where the applicant’s course provider cancelled the applicant’s enrolment due to non-payment of fees, the Tribunal places high weight on this information against the applicant and low weight on the applicant’s response that: a) he did not know he had any fees to pay at that time; b) he thought he paid his fees at the start of the course but he did not check for a long time; and c) the immigration agent he had at the time “misguided him a lot”. The Tribunal places high weight against the applicant on his admission that he knew that as the student it was his responsibility to manage his course enrolment.

7. In respect to the finding that the applicant has not completed any of the courses in which he had enrolled since he obtained his student visa in 2014, the Tribunal places high weight on this information against the applicant because this information demonstrates the applicant’s lack of commitment to undertaking and completing his courses of study.

8. In respect to the finding that the applicant remained un-enrolled in a registered course of study for approximately seven months until the Department provided the applicant a NOICC, the Tribunal places high weight on this information against the applicant because this information demonstrates that the applicant did not actively engage with the Department when he was in breach of his student visa condition 8202.

9. Likewise, in respect to the finding that at no time did the applicant contact either his course provider or the Department about his situation, the Tribunal places high weight on this information against the applicant because this information also demonstrates that the applicant did not take reasonable steps to actively engage with his course provider or the Department in order to manage his course enrolment or compliance with his student visa.

10. The Tribunal does not accept the applicant’s claims that he ceased to be enrolled in a registered course of study on 15 February 2017 due to his sister getting sick and his father getting sick. There is no documentary objective evidence in support of the applicant’s assertions that his sister got sick or that his father got sick at any time.

11. The Tribunal does not accept the applicant’s claims that he ceased to be enrolled in a registered course of study on 15 February 2017 due to depression. The applicant made admissions that he did not consult a psychologist or any other mental health professional because he was not a big fan of doctors, psychologists and “things like that”. There is no documentary objective evidence in support of the applicant’s assertions that he has ever been diagnosed with or treated for depression.

12. In respect to the applicant’s assertions that he ceased to be enrolled in a registered course of study on 15 February 2017 because he was young at the time these events occurred, he came from a different culture, he was all by himself in Australia and had no one to guide him and tell him what to do, the Tribunal places low weight on this information in the applicant’s favour because he has had ample opportunity to seek advice, guidance and assistance in the time he had his student visa.

13. In assessing the above, the Tribunal finds that the applicant failed to take reasonable steps in regard to maintaining his enrolment in his registered course of study. Accordingly, the Tribunal places high weight on this information against the applicant in regard to this factor.

    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

14. The applicant indicated that he came to Australia to study.

15. The Tribunal accepts that the purpose of the applicant’s travel to and stay in Australia was to study, but the Tribunal finds that the applicant has no compelling need to travel to or remain in Australia. Accordingly, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    The extent of compliance with visa conditions

16. The Tribunal finds that the applicant appears to have complied with his visa conditions apart from condition 8202. The Tribunal gives low weight in the applicant’s favour in regard to this factor.

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

17. The Tribunal spoke to the applicant about the hardship that may be caused to him if his student visa was cancelled.

18. The applicant indicated in response that his life would go down because he comes from a good society in India where everybody is educated. He indicated that some of his cousins have double masters and some have PhDs. He indicated that everybody had good jobs and were doing productive things. He indicated it would be hard for him to compete with anyone and get a job or get into any business or something. He indicated that all of his future would be very bad. He indicated it is very hard to compete in India without any qualifications.

19. When the Tribunal asked the applicant whether he could attend university in India he responded that it wasn’t a very good standard of education in India and he would be effectively starting again with people who are fresh out of school.

20. In respect of the above, the Tribunal accepts that the applicant may face some disappointment if his student visa was cancelled and he was required to return to his country of origin (India).

21. The Tribunal accepts the applicant feels that his life would go down because he comes from a good society in India where everybody is educated and that some of his cousins have double masters and some have PhDs. The Tribunal accepts the applicant feels that everybody had good jobs and they were doing productive things, and it would be hard for him to compete with anyone and get a job or get into any business or something. The Tribunal accepts the applicant feels that all of his future would be very bad and it is very hard to compete in India without any qualifications. The Tribunal accepts the applicant feels that it wasn’t a very good standard of education in India and he would be effectively starting again with people who are fresh out of school.

22. In all the circumstances, the Tribunal gives low weight in the applicant’s favour in regard to this factor.

    Past and present behaviour of the applicant towards the Department

23. There is no evidence that the applicant has been uncooperative with the Department in the past. The Tribunal accepts that there is no evidence that the applicant has been uncooperative with the Department in the past. Having taken this into consideration, the Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there would be consequential cancellations under s.140

24. The applicant does not have any dependents on his student visa who would be affected if his student visa was cancelled.

25. Accordingly, the Tribunal places no weight on this information in the applicant’s favour.

    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

26. The applicant indicated he is aware of the legal consequences of the cancellation of his student visa and he is aware of the three-year exclusion period as a consequence of his student visa cancellation and that s.48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

27. The Tribunal accepts that the applicant will need to make his own arrangements to obtain a visa to lawfully remain onshore and that if he does not do so, he will be in Australia unlawfully and may be liable to detention and removal if he chooses not to return to India.

28. The Tribunal accepts that the applicant will receive a three-year exclusion period as a consequence of his student visa cancellation. Section 48 of the Act means that the applicant will have limited options to apply for further visas in Australia.

29. The Tribunal places low weight on this information in the applicant’s favour.

    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

30. The Tribunal asked the applicant if he feared anything in returning to India. In response he said there were a few things. He indicated he was from Kashmir which was not the best part of India and he indicated it would be hard for him to resettle In India after spending such a long time in Australia. He indicated if he had a qualification he could get a job in a good company. He said he lived in a good area in India and he lived in his own little community but there was always something happening - like terrorist attacks. He indicated that India comes across as a good country, but it is not where he came from.

31. The Tribunal asked the applicant if anybody had persecuted him. He said to the Tribunal “you mean like potential to hurt me? Well, I don’t know but could be like this. I’m a well-known guy. I’ve always been smart guy, like I pretty much have everything.” He indicated that his great-grandfather lost lots of stuff when he moved from Pakistan to India.

32. Ultimately the applicant confirmed to the Tribunal that he had not been persecuted in India.

33. In consideration of the above, there is no indication that there would be a breach of any international obligations if the applicant’s student visa was cancelled. The Tribunal places low weight on this information in the applicant’s favour.

    Any other relevant matters

34. When the Tribunal asked the applicant whether there were any other relevant matters he wanted to raise before the Tribunal, he indicated that he missed being away from studies and wanted a little chance to do more study and he was disappointed in himself.

35. The Tribunal asked the applicant if there was anything the Tribunal had not considered and he responded he thought the Tribunal had covered everything.

36. In respect to the above, the Tribunal accepts that the applicant missed being away from studies and wanted a little chance to do more study and he was disappointed in himself but places low weight on this information in the applicant’s favour.

37. No other relevant matters were put to the Tribunal.

    Conclusion

38. The Tribunal finds that the applicant received his Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa on 16 July 2014.

39. The Tribunal finds that the applicant has not been enrolled in a registered course of study since 15 February 2017. Accordingly, the applicant has not complied with condition 8202(2)(a).

40. The Tribunal finds that the circumstances that led to the applicant’s course enrolment being cancelled, as detailed above, are not exceptional circumstances. 

41. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

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

    Joseph Lindsay

    
    

    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.