Shrestha (Migration)

[2019] AATA 3496

Shrestha (Migration) [2019] AATA 3496 (2 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Romee Shrestha

CASE NUMBER:  1709231

HOME AFFAIRS REFERENCE(S):          BCC2017/775881

MEMBER:David McCulloch

DATE:2 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 02 August 2019 at 9:15am

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 – no extenuating circumstances – Nepal earthquake – passing of family members – financial hardship – genuine desire to complete degree – substantial progress already made – 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 applicant is a national of Nepal born on 17 February 1989. The visa that has been cancelled was granted on 13 May 2016. That visa was subject to condition 8202.

3. On 30 March 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate considered that the applicant did not comply with condition 8202 of her visa, as she ceased to be enrolled in a registered course from 15 November 2016. The applicant provided a written response to the NOICC.  On 18 April 2017, the delegate decided to cancel the visa held by the applicant on the basis that the applicant breached condition 8202 of her visa. The applicant seeks review of the delegate’s decision.

4. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. The issue in the present case is whether the ground for cancellation is made out and, if so, whether the visa should be cancelled.

5. The applicant appeared before the Tribunal on 29 July 2019 to give evidence and present arguments. The applicant was represented by her registered migration agent, who attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Did the applicant comply with condition 8202?

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

   • be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)
   • has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and
   • has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

10. The applicant provided a copy of the delegate’s decision to the Tribunal which indicates that she has not been enrolled in a registered course of study since 15 November 2016.

11. The written submission provided on the applicant’s behalf in response to the NOICC acknowledges that the applicant has not been enrolled in a registered course as indicated.

12. It was clear in the Tribunal hearing that the applicant agreed that she had ceased to be enrolled in a registered course.

13. There is nothing before the Tribunal to suggest that the applicant was a holder of a Subclass 560 or 571 (School Sector) visa as a secondary exchange student, thus the applicant’s obligation under condition 8202(2) is to be enrolled in a registered course.

14. On the evidence before the Tribunal, the applicant was not enrolled in a registered course. Accordingly, the applicant has not complied with condition 8202(2).

    Consideration of the discretion to cancel the visa

15. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether to exercise its discretion to cancel the visa.

16. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of this discretion. However, the Tribunal has had regard to matters raised by the applicant as to why the visa should not be cancelled, and government policy guidelines contained in the Department’s Procedures Advice Manual (PAM3). These matters include: the purpose of the visa holder's travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose – whether there are extenuating circumstances beyond the visa holder’s control; the visa holder's past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s.140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia's non-refoulement obligations; and any other relevant matters.

17. The applicant’s migration agent provided the following written response to the NOICC dated 12 April 2017 (not corrected for spelling or grammar):

    We refer to your letter dated 30 March 2017 regarding the Notice of intention to consider cancellation of Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa under section s116 (General Power) of the Migration Act 1958. We thank you for the response date extension of five working days (revised due date Wed 12th April 2017) and the opportunity for the applicant, Ms Shrestha to comment on the ground(s) for cancellation identified in your letter, and to give reasons why her visa should not be cancelled, accordingly, please find our responses below. In summary, we seek your consideration to exercise delegated discretionary powers under section 116 (1) (b) of the Migration Act 1958 (the Act) subject to subsections (2) and (3), where the Minister may cancel a visa if he or she is satisfied that the visa holder has not complied with a condition of the visa, on compassionate grounds. These grounds consist of adverse anxious reaction to the Nepal earthquakes which occurred in April 2015 and the subsequent death of visa holders father in February, 2016.

    RESPONSE DETAILS

    1. We acknowledge that Ms Shrestha as the holder of a current 573 visa and had not been enrolled in a registered course of study as at 15 November 2016 and therefore, has technically not met the requirements of s116(1)(b) of the Migration Act 1958 (the Act) and consequently as the visa holder has not complied with condition 8202(2)(a) of the visa.

    2.       Immediately prior to this date, Ms Shrestha, had been enrolled in and has completed the "General English" course at Australian Ideal College (CRICOS Code: 069362D) involving a start date on 12 September 2016 and finish date on 04 November 2016, a statement of attainment letter is attached as Appendix 1.

    3.       Further, Ms Shrestha had previously enrolled in the combined MBA/MPA degree at Holmes Institute (Sydney) in February 2015 yet discontinued in early 2016 due to the death of her father in February 2016. Hence the identification of non-enrolment on 15 November 2016. She has since enrolled in a Master of Business Administration Degree (Coursework) [CRICOS Code 084520C] involving a course start date: 08/05/2017 and course end date: 03/05/2019. A confirmation of enrolment (CoE) from Group Colleges same is attached as Appendix 2.

    4.       Ms Shrestha's enrolments and study patterns since her return to Australia on the current 573 visa granted on 13 May 2016 were adversely affected by the death of father in February 2016, a copy of the relevant death certificate is attached as Appendix 3. Her father had fallen seriously ill some three years earlier and she had travelled back to Nepal to visit him in May 2014 a hospital admission document regarding her father is attached as Appendix 4 she and again travelled to Nepal in February 2016 to attend her father's funeral.

    5.       Ms Shrestha has had great difficulty in dealing with her bereavement of her father's passing and has consulted a psychologist to assist her in this respect and this and her difficulties with study and course selection generally this has assisted her in conjunction with the emotional support of her brother and his wife with whom she lives in Sydney, she was unsure as to her future educational and career paths a detailed psychologists report is attached as Appendix 5.

    6.       Ms Shrestha's father was her a major source of financial support to her since arriving in Australia in December 2013 where she had successfully undertaken her studies until early 2016 when her father passed away. This event has understandably been the source of immense grief and disruption to her studies whilst on her 573 visa to date. Ms Shrestha is now more financially self-sufficient having obtained part time employment at Mad Max Mexican Restaurants since late 2016. A current bank statement is attached as Appendix 6.

    6. Nevertheless, and although she acknowledges her oversight in not adequately keeping the DIBP informed of her changes in circumstances she has persevered and as mentioned above has enrolled in a MBA course with Group Colleges Australia Pty Ltd [02571D] (trading as: Central College; Metro English College, Universal) for the course duration period of May 2017 until May 2019, the corresponding COE is attached as Appendix 2.

    Therefore, we request on compassionate and sympathetic grounds that her current 573 visa not be cancelled as she has demonstrated renewed commitment to adhere to her visa obligations more diligently as she deals more productively over time with both her study issues and more recently the traumatic life event which was beyond her control, namely the loss of a parent.

    We conclude and summarise by addressing the categories of factors and reasons as to why the current 573 should not be cancelled and therefore seek your compassionate consideration with the following matters be taken into account in your decision;

    the purpose of your travel to and stay in Australia

    Ms Shrestha's purpose to travel to and stay in Australia was undertake studies towards and MBA and MPA degree courses under the current 573 visa granted to her on 13 May 2016. Despite major disruptions to her compliance attempts she has recently enrolled in appropriate course for study during the period of May 2017 until May 2019.

    the extent of compliance with any conditions subject to which the visa was granted

    As stated above the visa holder had enrolled in MBA and MPA degree courses under the current 573 visa, however extenuating circumstances beyond her control, namely the death of her father in February 2016 has severely affected her ability to meet compliance conditions of the 573 visa.

    the degree of hardship that may be caused to you and any family members if the visa is cancelled

    The visa holder has no immediate family in Nepal except for her mother who is seriously ill at present and would greatly benefit from the continuing support of her brother (who is a permanent Australian resident) in Sydney with whom she resides. Consequently, cancellation of her visa would greatly disrupt the visa holder's educational plans and career path ambitions.

    the circumstances in which the ground for cancellation arose

    As stated above, the visa holder was severely and adversely affected by the death of her father in February 2016. Ms Shrestha has had great difficulty in dealing with her bereavement of her father's passing.

    your past and present behaviour towards the department

    The visa holder's behaviour towards the department is explained whereby she anticipated and was advised by the educational agents she utilised including Experts Educational Consultancy and Baba Education Consultancy that they would keep the DIBP updated as to her compliance status. However, she now realises that she, herself must keep the department informed of changes in her circumstances in the future.

    the legal consequences of a decision to cancel the visa

    The legal consequences of a decision to cancel the visa would not only prevent Ms Shrestha from completing her studies but would also impose a barrier from applying for subsequent Australian visas for several years and would certainly prefer to avoid such an event and consequences.

    any other matters

    A chronology of enrolment events to assist in your determination is as follows;

    Dec 2013— initial arrival to Australia on previous 573 visa

    July 2014- Master of Project Management at Curtin University (Sydney campus).

    Feb 2015- MBA/MPA — Holmes Institute (Sydney) enrolled May 2016 Sep 2016- General English course - Australian Ideal College, end date on 04 Nov 2016 Current enrolment - MBA - Group Colleges Australia Pty Ltd - May 2017 until May 2019

    We trust this response and the associated appendices provide adequate grounds for your consideration and decision not to proceed with the cancellation of Ms Shrestha's current 573 visa as she has since made efforts to become currently enrolled in the MBA program at Group Colleges Australia Pty Ltd therefore currently complying with condition 8202(2)(a) of the visa. We look forward to your advice.

18. The applicant provided the following Statutory Declaration to the Tribunal dated 22 July 2019 (not corrected for spelling or grammar):

    I came to Australia as a holder of student visa.

    After arriving Australia I studied Master's Degree in Project Management at Curtin University. According to the course requirement I studied General English at NAVITAS and after completion of General English was enrolled to study Master's Degree.

    After the completion of first semester of Project Management at Curtin University I moved to Holmes Institute to study to Masters in Business Administration.

    I had studied Bachelor's in Business Accounting (Studies) from Pushapati Multiple Campus in Nepal. I thought of changing my career or course of study from Accounting to Project Management. However, after studying first semester of Project Management I realised that I was not studying the right course. Being studies Accounting overseas I decided to change the course back to accounting which I had a strong hold.

    I was offered combined MBA/ MPA course by Holmes Institute. I commenced studies at Holmes Institute from 16 March 2015 which was scheduled to complete on 8 July 2016. I was granted credit by Holmes Institute for my previous studies at Curtin University.

    While I was studying MBA /MPA at Holmes Institute, due to several reasons I was not able to continue studies. I was enrolled for four units in the first semester of the course. I was only able to complete two units out of four units.

    During my studies at Holmes Institute, I was not able to focus on studies because of unpleasant circumstances around me. In April our family home was completely destroyed by the devastating earthquake that hit Nepal on 12 April 2015. My parent had to rebuild our family home and my father was unable to support me financially.

    My Australian citizen brother (Then Permanent Resident) was also not able to support me financially for my studies as he had to go to Nepal to help my father to rebuild the house. He was away from Australia for almost six months helping my father to rebuild the house. During his absence from Australia he was also not able to support me financially. Because of unavailability of funds and going through the stress of destroyed house I was not able to concentrate on my studies.

    Also I was worried about the health condition of my father who was being admitted in the hospital several times because of his health condition. He was suffering from Diabetes, High Blood pressure and also suffered from chronic kidney disease. He started to suffer from health condition from 2014 and gradually started to deteriorate his health condition. After I came to Australia I visited couple of times back home to take care of my father. Following the bad health condition of my father I was not able to concentrate on my studies.

    While I was going through this stress, in 2016 members of my family pass away. First of all my grandmother pass away in 26 January 2016 and within a week my father pass away on 2 February 2016. Because of these incidents I suffered from mental stress and was not able to concentrate on studies.

    After the death of my father I went to Nepal to attend the last rights of my father and stayed in Nepal for about a month. As I was suffering from mental stress I visited Psychiatrist Dr Nagendra Katuwal. I was divested by the death of my father. I was not even able to see my father before he died.

    As I suffered from mental stress after returning to Australia I visited psychologist Stephen Sutton in April 2017 who recognised that I was suffering from depression/ Anxiety / Stress Scale (DASS). I was not being able to sleep and having bad nightmares because of serial death in my family.

    However, over the time I was able to control my emotions and feeling of losing father and decided to focus on studies for which I came to Australia.

    I contacted education providers who offered me a place to continue my studies. I commenced my studies at Universal Business School Sydney for Masters of Business Administration from 8 May 2017 and have completed 16 units of the course. I have completed 62% load of the course and expected to complete the course in May 2020.

    I have been offered a place to complete the remaining units by Group Colleges Australia commencing from 2 September 2019 which is scheduled to complete on 1 May 2020. I completed the last term in May 2019. As the units I have to complete were not available in the current semester I was offered to complete the course commencing from September 2019.

    As there will a gap between May and September 2019, to maintain the integrity of student visa I am currently enrolled for General English course. However, my main focus will be complete Masters of Business Administration in May 2020.

    I say that in past I was not able to continue my studies mainly because of financial hardship and the medical condition I was going through for the loss of my family members. The conditions were not in my control. However, I also regret that I was not able to concentrate on my studies. II have lost valuable time of my life which I cannot bring back.

    I am still in touch with the psychologist for my mental health condition. I speak to Dr Nagendra Katuwal over the phone back home and take advises from him. I am also visiting Dr Naomi Hills in Australia for my mental health. I believe that I am able to control the stress level I was going through and would be able to focus on my studies to complete in given time.

    I am a genuine student and willing to complete my studies. I was not obliged to continue studies while my application at Administrative Appeals Tribunal was under consideration. There were no such conditions on the bridging visa I was granted that I have to study. However, I am focused to complete the course I am currently enrolled, even though I was not obliged to study.

1. Provided to the Department is a Statutory Declaration dated 12 April 2017 from the applicant’s sister-in-law who lives together with her husband (the applicant’s brother) and the applicant in Australia.  The deponent is a permanent resident of Australia. The deponent refers to the applicant being negatively and severely affected by the death of the applicant’s father in February 2016. The applicant was severely depressed and anxious to the point that she could not concentrate on her studies enough to progress and has suffered due to her emotional state during 2016. However, the applicant’s condition has improved somewhat and she has started to see a psychologist to help with her situation.

2. Provided is a report dated 9 April 2017 from Mr Stephen Sutton a Registered Counselling Psychologist. The report indicates that the applicant became very upset when her father became sick in early 2015 and was at the hospital many times. The report indicates that family homes of the applicant in two locations in Nepal were destroyed in the April 2015 earthquake. The applicant’s brother took time to return from Australia to go back and help the family in July 2015. The applicant’s father died in February 2016 and the applicant returned to Nepal for the funeral. When the applicant returned to Australia in March 2016 she did not feel up to studying her Masters as she was still too stressed and depressed to deal with it. Instead she just enrolled in a three-month English course to meet her visa requirements. The applicant is now much improved although distressed and anxious to get a degree. She was enrolled to commence an MBA in May 2017.

3. The applicant had been referred to the psychologist to help explain to the Department her absence from study from September 2015 until now.

4. Using a standard Depression/Anxiety/Stress Scale (DASS) the applicant reports moderate symptoms for Stress, Anxiety and Depression. For the period September 2015 to December 2016 she reports severe symptoms for these conditions. The applicant also reports trouble sleeping with nightmares about her father, feeling unsociable and staying at home. It is hoped that the applicant’s remaining moderate symptoms will improve back to normal once the visa problem is resolved.

5. The applicant’s representative provided further submissions to the Tribunal on 22 July 2019. The submissions state that the applicant has been offered a place to complete her course by May 2020. The submission notes that the applicant lacked funds to complete her course as the money set aside by her family for her course was used to rebuild the family home following the 2015 earthquake in Nepal, and the applicant’s brother departed Australia for six months, depriving the applicant of his income also. The applicant’s grandmother and father died within a week of one another, and this caused the applicant to suffer an emotional breakdown.

6. The submission states that the applicant then suffered from moderate depressive episodes and received antidepressants and counselling. The applicant visited a psychiatrist in Nepal and a psychologist in Australia, and the latter diagnosed the applicant with depression/anxiety/sleeplessness and found that she may not be able to concentrate on her studies. Nevertheless, the applicant was offered enrolment in a Master of Business Administration.

7. The submissions also note that the applicant was offered enrolment from 2 September 2019. The applicant could not start sooner, as the requisite units are not offered till then.

8. The submissions state that the applicant is a genuine student who was unable to continue studies for reasons beyond her control, namely financial hardship, mental health, and deaths in the family. The applicant has continued studying during her application to the Tribunal, and has studied General English to hold her place before enrolling in her Masters.

9. The applicant submitted two documents from the Universal Business School Sydney. The first is an academic progress statement in regard to the applicant, dated 3 May 2019. The statement outlines the applicant’s personal details and studies in the Master of Business Administration.  The statement notes that the applicant was enrolled in the 80 credit points (16 subjects) programme, and has completed 10 subjects. The applicant has not received credit for any prior subject. The applicant has completed 62% of the course.

10. The second document is an internal form of the applicant’s results thus far, dated 1 July 2019. According to the form, the applicant completed three units in August 2017, scoring a credit and two passes. The applicant completed two other units in December 2017, scoring a Distinction and a Pass. The applicant then completed another three units in April 2018, and scored a Pass for each unit. The applicant studied another two units in August 2018, scoring a Credit and a Pass. The applicant studied two more units in December 2018 and received a Fail and an ‘AF’, the meaning of which is not stated on the form. The applicant studied another unit in May 2019, and scored an ‘AF’ again.

11. The applicant provided an additional psychological report. This is an undated report from Dr Naomi Halls in Crows Nest. The report states that the applicant attended the clinic on 6 February 2019, three months following the death of her grandmother. The report states that the applicant has experienced low mood, anxiety, and grief, and notes a prior hospital admission three years earlier in which the applicant was diagnosed with a significant level of depression, grief, insomnia, and anxiety following her father’s death. The report notes that the applicant demonstrated a very low mood, as well as high levels of stress and anxiety. The report states that, in Dr Hall’s opinion, the applicant is unable to continue her studies.

    Hearing, findings and assessment

12. In the hearing the applicant confirmed that when she returned from Nepal in March 2016 she was not in a position to study because of her condition following the death of her father and financial impediments as a result of the April 2015 earthquake.

13. The Tribunal put to the applicant that it was unlikely that the Tribunal would consider these facts as extenuating circumstances beyond her control given that these events predate the application for the student visa which has been cancelled, which was applied for on 15 April 2016. The Tribunal notes that on the same day as this new student visa was applied for the applicant changed her enrolment in the Master of Professional Accounting to recommence on 11 July 2016. That enrolment was then cancelled on 11 July 2016 for non-payment of fees.

14. The applicant indicated in the hearing that she did have a wish that she could recommence this course in July 2016 however her condition continued such that she could not recommence her studies in July 2016. The applicant indicated that she sought another extension of this course but the education provider refused.

15. The Tribunal considers there is an inherent contradiction in the applicant claiming she did not have the funds to study after returning from Nepal in March 2016 yet soon after rescheduling the Master of Professional Accounting to recommence in July 2016 and applying for a new student visa. The Tribunal does not consider that events which occurred before the visa was applied for can be considered extenuating circumstances as explaining a breach of visa conditions.

16. The Tribunal discussed with the applicant her progress in the Master of Business Administration that she commenced on 8 May 2017. It is clear from the evidence of the applicant has completed 10 out of the 16 units in this course. In the hearing, the applicant indicated that she started having difficulties with this course towards the end of 2018 and failed two units. This created confidence issues for the applicant which was compounded by the death of her grandmother at around this time back in Nepal.

17. The applicant indicated in the hearing that the hardship to her if the visa were cancelled would be her inability to complete her Masters, which she very much wants to do and is on track to achieve. The applicant referred to family disappointment in Nepal if she does not complete the course. The applicant referred to more limited career prospects on return to Nepal if she does not complete the course. The applicant referred to challenges in enrolling in a similar course in Nepal.

18. The applicant indicated that after her intended completion of the Masters of Business Administration in early 2020 she has an intention to return to Nepal with this qualification.

19. It is clear from the history of the applicant’s study records before the Tribunal that the applicant has, on two occasions, enrolled in and studied an English course.  The Tribunal accepts that this was done by the applicant in order to mitigate other defects in study progress and enrolment.

20. The Tribunal assesses these relevant discretionary factors.

21. For the reasons indicated the Tribunal does not consider that financial impediments caused by the April 2015 earthquake or the death of the applicant’s father in February 2016 can be considered extenuating circumstances beyond the applicant’s control that can justify the breach of the student visa conditions that was applied for after these events occurred.

22. The Tribunal accepts that the applicant was making good progress in her Masters of Business Administration during 2017 and until the end of 2018 when her positive progress halted. The Tribunal is prepared to accept that the applicant suffered from a loss of confidence compounded by the death of her grandmother in Nepal.

23. There are not insignificant defects in the applicant’s proper enrolment and study progress throughout the history of her study in Australia.  The Tribunal does not consider that extenuating circumstances which occurred prior to March 2016 explain these deficiencies. These matters are not insignificantly adverse to the applicant in the exercise of the Tribunal’s discretion. The Tribunal is prepared to accept some temporary extenuating circumstances that explain the failure of units at the end of 2018 and in early 2019 and dropping out of the course.

24. The applicant has completed 10 of 16 units of her Masters of Business Administration. Despite the not insignificant failure in her enrolment and study progress in Australia, the Tribunal was impressed in the hearing that the applicant has a genuine desire to complete the remaining six units of her Masters degree. The fact that the applicant has already completed a significant proportion of this degree and has enrolled to commence reasonably soon the study of her remaining six units are factors in the applicant’s favour.

25. Although the enrolments did not remedy relevant defects in the visa, the Tribunal does take it as supportive of the applicant’s positive intent in relation to study requirements that she has enrolled on two occasions in an English course to seek to mitigate other defects.

26. The Tribunal agrees that it will be a not insignificant hardship to the applicant if she is not able to complete her Masters of Business Administration.

27. Balancing discretionary factors both adverse and favourable to the applicant, the Tribunal determines that it should not exercise its discretion to cancel the visa.  The Tribunal considers that there is an earnestness and intent by the applicant to complete her studies, albeit the Tribunal is not satisfied as to various extenuating factors claimed by the applicant.

28. The Tribunal considers that the applicant should be given the opportunity to complete the remainder of her Masters of Business Administration including considering that the bulk of the course has already been completed.

29. The Tribunal wishes to highlight to the applicant the importance of her now continuing to meet her visa obligations and that it would have been very easy for the Tribunal to tilt the other way in balancing the discretionary factors both favourable and adverse to the applicant.

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

    DECISION

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

    David McCulloch
    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.