Singh (Migration)

[2019] AATA 4738

Singh (Migration) [2019] AATA 4738 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karanjeet Singh

CASE NUMBER:  1714386

HOME AFFAIRS REFERENCE(S):           BCC2017/1197521

MEMBER:Frank Russo

DATE:29 October 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 29 October 2019 at 8:51pm

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 – satisfactory course progress – compelling reason for remaining in Australia – circumstances giving rise to non-compliance – fees dispute with course provider – prevented from enrolling for outstanding fees – attribution of responsibility for breach – 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 3 July 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not meet the requirements of his Student visa as he was not enrolled in a registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 14 August 2019 to give evidence and present arguments.

4. The applicant is a 22-year-old Indian national who arrived in Australia on 5 June 2015 for the purpose of studying a Bachelor of Business at Southern Cross University. According to the delegate’s decision, the applicant’s enrolment in this course ceased on 3 July 2017, and he remained unenrolled in a registered course of study until the date of the delegate’s decision, on 3 July 2017. At the time of the hearing, the applicant was enrolled in a Bachelor of Accounting at Universal Business School Sydney (UBSS), part of Group Colleges Australia, and had completed approximately 25% of the units for this course.

5. In addition to the information provided with his application for review, the applicant provided the Tribunal with copies of the following documents:

   a.A copy of the delegate’s decision;

   b.Copy of the applicant’s passport;

   c.A submission dated 5 August 2019, together with the following documents in support of the claims in his submission:

   i.Confirmation of Enrolment (CoE) for the Bachelor of Business at Group Colleges Australia, created on 4 July 2017;

   ii.CoE for the Bachelor of Business at Southern Cross University (SCU) from 15 June 2015 to 26 May 2018;

   iii.Email from Group Colleges Australia, dated 31 May 2017, regarding offer to study at UBSS (Universal Business School Sydney) and Offer and Acceptance of Enrolment, dated 29 May 2017;

   iv.Printout of Course Progress at Group Colleges Australia, dated 30 July 2019;

   v.Applicant’s Academic Transcripts for studies in the Bachelor of Business and Bachelor of Accounting at UBSS, dated 4 May 2019, and Academic Progress Statement for the Bachelor of Business (Major in Accounting), dated 30 July 2019;

   vi.Account Statement for fees paid for the Bachelor of Accounting at UBSS, as at 15 May 2019;

   vii.The applicant’s Statement of Account at SCU, as at 7 March 2017;

   viii.Emails regarding outstanding fees, from Southern Cross University (SCU), dated 15 August 2016, and National Credit Management Limited (NCML), dated 7 March 2017;

   ix.Offer of Admission from SCU, dated 25 September 2014;

   x.Student Term Calendar for the applicant at UBSS, dated 8 March 2019; and

   xi.Records of the applicant’s secondary school education.

6. On 14 August 2019, the Tribunal wrote to the applicant, providing him with certain information from the Department’s file, which the Tribunal considered could be the reason, or part of the reason for affirming the decision under review, and inviting the applicant to comment on or respond to the information. In response, the applicant provided a submission dated 26 August 2019, and attached the following additional documents:

   a.Receipt for payment of student fees at UBSS, dated 25 August 2019;

   b.Updated Account Statement for the Bachelor of Accounting at UBSS, as at 25 August 2019; and

   c.Enrolment fees reminder notice from SCU, dated 14 August 2019.

7. The Tribunal has had regard to these documents in making its decision. The Tribunal also has a copy of the Department’s file and has had regard to the documents on that file.

8. 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

9. 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?

10. 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).

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

12. At the hearing the applicant gave evidence that he arrived in Australia on 5 June 2015 for the purpose of studying the Bachelor of Business at SCU. He gave evidence of the difficulties he had with SCU in relation to certain pre-payment of fees which he made and SCU’s unwillingness to recognise these, as well as ongoing issues about whether he owed SCU any outstanding amounts. The evidence is set out in detail in my consideration of the circumstances in which the ground for cancellation arose. The applicant conceded that as a result of these disputes, his enrolment was cancelled by SCU.

13. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file a copy of his enrolment records from the Provider Registration International Student Management System (PRISMS) database. The Tribunal provided the applicant with a copy of his PRISMS enrolment records. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

14. The applicant chose to respond to the PRISMS enrolment record at the hearing and indicated that it was an accurate reflection of his enrolment history. The Tribunal noted that the applicant’s enrolment in the Bachelor of Business was cancelled on 18 August 2016, with the variation reason provided being ‘Unsatisfactory course progress’. A further variation reason is recorded for 29 July 2016, which records ‘Student Notifies Cessation of Studies’.

15. The applicant stated in his evidence that he accepts there was a breach of his enrolment condition. He conceded that he was not enrolled in a registered course of study from 18 August 2016 to 3 July 2017, the date of the delegate’s decision, and had failed to maintain his enrolment in accordance with condition 8202. The applicant confirmed that he accepts that there are therefore grounds for cancellation of the visa.

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

    Consideration of the discretion to cancel the visa

17. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.

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

18. The applicant told the Tribunal that the purpose for his travel and stay in Australia is for the purpose of studying to obtain a tertiary qualification. He stated that he wanted to study at SCU because it is a high-level college, however as a result of the dispute over the payment of fees with SCU, he was unable to continue his enrolment. Further details of the dispute are set out in my consideration of the circumstances in which the ground for cancellation arose.

19. The applicant gave evidence that following the delegate’s decision he enrolled in the Bachelor of Business at Group Colleges Australia (at UBSS) on 28 August 2017 and at the time of the hearing he was enrolled in the Bachelor of Accounting at Group Colleges Australia.

20. As to why he has now enrolled at Group Colleges Australia, when previously he was enrolled at a public university, he told the Tribunal that he wanted to enrol in a course as soon as possible as he felt that he was wasting his time in Australia and that he had already wasted about a year.

21. The Tribunal raised with the applicant that according to his PRISMS record, two of his enrolments at Group Colleges Australia have been cancelled (the Bachelor of Business cancelled on 1 February 2018 because ‘Student Notifies Cessation of Studies’, and the Bachelor of Accounting cancelled on 5 June 2018 because of ‘Non payment of fees’). The applicant explained that the first cancellation was because he changed his enrolment from the Bachelor of Business to the Bachelor of Accounting. The second cancellation was because Group Colleges Australia changed their payments policy and he paid for course fees a day late. He stated that the college reinstated his enrolment, but told him that he would have to start studying again in the following semester. He conceded that there had been a break in his studies of about four months because of this. The applicant provided copies of receipts and financial summaries for his current enrolment at Group Colleges Australia, which were current as at 25 August 2019. These show that the applicant has already made significant fee payments towards the total cost of his current course.

22. At the hearing the applicant gave details of the subjects that he is enrolled in, as well as the dates of upcoming exams, including an exam which was scheduled for the day after the hearing. The applicant also provided printouts of Course Progress documents and Academic Transcripts for his studies at Group Colleges Australia, which show that the was enrolled in the second semester of 2017 in the Bachelor of Business, successfully completed subjects in that semester, and has continued to progress with his studies towards the Bachelor of Accounting in each semester since then. The Tribunal is satisfied that the applicant is making good progress towards completing the Bachelor of Accounting, of which he has completed approximately 25% of the required units, and which he is scheduled to complete on 23 April 2021.

23. At the time of the hearing the applicant was working 20 hours per week in the insulation industry, which he said he commenced in December 2018. He stated that prior to that he had only worked casual jobs as a cleaner.

24. The Tribunal is satisfied that the applicant is displaying a strong commitment towards completing his current Bachelor degree course and has made good progress since August 2017. The Tribunal notes that the applicant has maintained a consistent pathway with his studies in the fields of Business and Accounting and has continued to study at the Bachelor degree level. Accordingly, the Tribunal finds that the applicant has a compelling reason for remaining in Australia. The Tribunal is satisfied, based on the applicant’s evidence, that there are no other significant reasons for him remaining in Australia other than for the purpose of study. The Tribunal gives this some weight against cancelling the visa.

    The extent of compliance with visa conditions

25. The applicant conceded at hearing that he did not comply with condition 8202 of his Student visa by not maintaining enrolment in a registered course of study from 18 August 2016 to 3 July 2017. He gave evidence of his attempts to remedy this situation prior to receiving any contact from the Department. This evidence includes making enquiries of SCU about the outstanding fees issue, as well as contacting other colleges.

26. The applicant told the Tribunal that he has abided by all of the other conditions of his Student visa, as well as the conditions of his Bridging visa. There is no evidence before the Tribunal of other breaches by the applicant of his visa conditions. Accordingly, I give this some weight against cancelling the visa.

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

27. When asked about the degree of hardship that may be caused as a result of the cancellation of his visa, the applicant stated that the purpose of his travel to Australia is to obtain a degree, and the greatest hardship will be that he will be unable to complete his studies. He stated that it will mean that he has wasted four years. He stated that his family will suffer and that it will break his parents. He stated that he was a very high achiever when he was in India, however if he goes back now without a degree he will have to start again and he won’t have anything in India. He stated that his future will be affected, stating that he is already 23 years old.

28. The Tribunal is satisfied that the applicant would experience hardship as a result of the cancellation of the visa, including a delay in his ability to obtain a tertiary qualification in Australia, which is the purpose for his travel and for him remaining in Australia. Since the delegate’s cancellation decision, the applicant has completed approximately half of the requirements for a Bachelor degree, and will potentially lose the benefits of the academic effort and the financial cost towards these studies. I give this some weight against cancelling the visa.

    Circumstances in which ground of cancellation arose

29. The applicant gave evidence that he commenced his studies at SCU on 15 June 2015. He stated that he had pre-paid an amount of $9,280 towards his course, which is confirmed by the copy of the CoE for this course which he provided to the Tribunal. He gave evidence that because of his inexperience with the Australian education system, he asked SCU whether he could enrol in only two subjects in his first semester, which were Management Principles and Commerce. The applicant stated that he failed both subjects.

30. The applicant stated that in his second semester at SCU he enrolled in three subjects and was told that he had to pay $8,329 for these subjects. He stated that the cost of the two subjects he had done in semester 1 was $4,640, which should have left him with a credit of over $4,000 from the pre-paid amount he had paid prior to leaving India. He stated that he went to the reception at SCU and asked what the fees of $8,329 were for, and was told that they were outstanding fees.

31. The applicant stated that he then received a statement of account which indicated that he had to pay $1,500. He stated that he did not know what this fee was for, but paid it because he was young and inexperienced and worried about what would happen if he didn’t pay it. He stated that when he went to enrol in his third semester, he was again told that he had an outstanding fee of over $8,000 to pay. He gave evidence that he intended to enrol, but he was confused with the amounts which were outstanding and wasn’t able to get any satisfactory answers.

32. The applicant stated that on 7 March 2017 he received an email from a debt recover company for over $5,000 in fees, however when he called SCU on 29 May 2017, he spoke to a woman called Marta, who told him that there was nothing outstanding on his account.

33. The applicant provided the Tribunal with a Statement of Account from SCU, as at 7 March 2017. This shows an opening balance of -$2,227.50 (which the Tribunal understands to be the amount of credit in the applicant’s favour following his enrolment in his first semester) and a final amount owing of $5,889.50. The applicant noted that this statement does not show he pre-paid $9,280 in tuition fees. The applicant also stated that in his second semester, SCU agreed to reverse the fee paid for one subject, but he never received the refund. He stated that when he asked SCU for the refunds to be paid into his account, he was told that the amounts would remain with SCU and would be held for when he next enrolled in the same subject.

34. The Tribunal notes that the evidence the applicant’s gave with respect to the subjects he studied differs slightly from the account he provided to the Department in his response to the Notice of Intention to Consider Cancellation (NOICC). In his response dated 19 June 2017, the applicant stated he studied three subjects in his first semester and asked SCU whether he could study two subjects in the second semester. The Tribunal does not make any adverse findings in relation to these slightly different accounts, and considers this reasonable given the applicant was giving accounts of subjects he had been enrolled in four years earlier. However, the Tribunal considers the account the applicant gave to the Department in response to the NOICC to be more convincing, given it is also supported by documents supplied by SCU that are contained in the Department’s file.

35. The applicant told the Tribunal that he never received an email or other notice from SCU to indicate that his enrolment had been cancelled. Nor had he received a warning. He stated that he applied to enrol at Group Colleges Australia and then received the Notice of Intention to Consider Cancellation (NOICC) from the Department, which was when he first realised that his enrolment at SCU had been cancelled. The Tribunal notes however that the Department had contacted the applicant on 24 May 2019, informing him that it needed to issue an important formal written notification about his visa, and the Tribunal therefore gives little weight to the applicant’s claim that he had contacted Group Colleges Australia prior to receiving the NOICC.

36. Adopting the procedure in section 359AA of the Act, the Tribunal put to the applicant that it had on file copies of the following documents which were on the Department’s file:

    a.Statement of Account from Southern Cross University for the period 1 January 2015 to 29 June 2017;

    b.Student History Report, prepared by Sothern Cross University, dated 29 June 2017;

    c.Email from Southern Cross University addressed to the applicant, regarding ‘Unsatisfactory Course Progress and Reporting to Department of Immigration and Border Protection’;

    d.Emails from Southern Cross University addressed to the applicant, dated 10 March, 24 March and 1 April 2016;

    e.Email from Student Administration Officer, Southern Cross University, to Department of Immigration and Border Protection (the Department), dated 30 June 2017, setting out details of the applicant’s attendance record in the Bachelor of Business.

1. The Tribunal provided the applicant with a copy of these records. The Tribunal explained to the applicant the relevance of the records to the review before the Tribunal. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to the records and advised that he may be granted time to comment on or respond to the information if needed.

2. The applicant stated that he wished to respond to the records at the hearing. He told the Tribunal that he had never received a full statement of fees from SCU. The applicant said that according to the Statement of Account which the Tribunal had handed him, SCU claims that he studied seven or eight subjects, which he stated was not the case. He stated that there appeared to be errors in SCU’s system. He stated that he had only ever enrolled in four subjects and he had paid for all the ones he had enrolled in. He stated that on the day of the hearing he had received a new email from SCU stating that he owed SCU $4,977. A copy of an Enrolment Fees Reminder Notice from SCU for this amount was subsequently provided to the Tribunal.

3. Following the hearing, the Tribunal provided the applicant with copies of the above documents, noting that the information may be relevant to his claims about the reasons for cancellation of his enrolment in the Bachelor of Business at SCU, as well as relevant to his claims that he was not notified by SCU prior to the cancellation of his enrolment and only found out about the cancellation of this enrolment in the NOICC, received on 2 June 2017. The Tribunal invited the applicant to give comments or respond to the information in writing.

4. The applicant responded to this information in his submission dated 26 August 2019. In this submission he asserts that:

   a.The Statement of Account from SCU shows that some fees have been reversed, however these fees continue to be held by SCU and he never received a payment back to his bank account;

   b.SCU ignored his concerns about fees that he had paid. This made him anxious and affected his ability to study;

   c.His student email was blocked by SCU because of the dispute about the payment of fees. He was therefore unable to access any of the emails which were sent about his course progress. These emails were not sent to his private email account;

   d.Every time he tried to enrol in a new semester, he was told by SCU that he had outstanding amounts due. He was prevented from enrolling in August 2016; and

   e.Since he has enrolled at Group Colleges Australia he has paid all fees and continued to study.

5. The applicant stated that his intention had always been to study, but because of the dispute about fees he was unable to enrol. He stated that he was confused about what was outstanding and he and his parents had an argument about the fees which were owed. He stated that he started to look at enrolments with other colleges.

6. The applicant conceded that while he was in breach of the enrolment requirement, he believes that this was all due to the confusion created by SCU in relation to outstanding fees. He reiterated that he had not received a warning from SCU and stated that it was never his intention to breach any laws. He stated that he has never had any problems with Group Colleges Australia.

7. The Tribunal has considered the applicant’s evidence and considered the full Statement of Account that is available on the Department’s file. The Tribunal notes that this statement records an opening balance of $0.00 and the first fees were calculated on 19 June 2015. It shows that the fee per unit was $2,320, that the applicant was charged fees for five different units, some of which were reversed and then added several times. There are a total of 32 transactions for 19 June 2015 alone, at the end of which the statement records the applicant as owing $7,031, which is the fee for three units (ACC10707, ECO10250 and MKT00075), as well as a small administration fee of $71.

8. The applicant’s Student History Report from SCU indicates that in in his first semester (session 2 of 2015) he was enrolled in 3 subjects, Accounting for Business (ACC10707), Economics for Decision Making (ECO10250) and Marketing Principles (MKT00075), consistent with the statement he gave to the Department in response to the NOICC. In session 3 of 2015 he enrolled in two subjects, Managing Organisations (MNG10247) and Communications in Organisations (COM00207). It indicates that in 2016 he was enrolled in a further two subjects, Introduction to Business Law and Applied Ethics and Sustainability.

9. The first payment on the Statement of Account was for $9,258.50, received on 22 June 2015, which is most likely the tuition deposit paid by the applicant’s family, as the applicant did not give evidence of paying such an amount following his first enrolment at SCU. This put the applicant’s account in credit by $2,227.50, following which the applicant’s account was deducted additional fees of $2,320 per subject for two enrolments on 28 October 2015, giving the applicant a balance of $2,412.50 payable for his fees. The applicant subsequently paid $1,500, which was credited to his account on 11 November 2015, leaving an outstanding balance of $912.50. Fees for an additional three subjects, of $2,440 per subject, were added on 23 February 2016. The fee for one subject was subsequently reversed, leaving the applicant with an outstanding balance of $5,889.50. The Tribunal finds that this outstanding balance reflects the units in which the applicant was enrolled.

10. The applicant gave evidence that he had not previously received a full statement of fees from SCU, and was confused about what fees were payable. The Tribunal also notes that the records of SCU appear to be administered in a way which may be confusing to international students. This is apparent in the following:

    a.The applicant received an email from SCU on 15 August 2016, indicating he had an outstanding amount of $8,329 in fees due. This is despite the applicant having withdrawn from one of the subjects he had initially enrolled in for session 1 of 2016. The fee for this subject (MAT10251) was subsequently reversed on 19 August 2016; and

    b.There is no explanation as to why the applicant’s account was charged fees of $1,500 on 11 November 2015 or how this fee related to the units the applicant was enrolled in or would study in the future.

11. There is also evidence that the applicant had called the debt collection agency on 6 March 2017 in relation to the disputed amount of $5,889.50, as recorded in the email from NCML on 7 March 2017. This may support the applicant’s claims that he was actively attempting to resolve the dispute surrounding fees.

12. While the Tribunal finds that the applicant’s full account statement reflects the courses which he was recorded as being enrolled in (other than the late reversal in respect of MAT10251), the Tribunal considers that the accounts system at SCU may be partially responsible for the applicant’s confusion about outstanding fees. The Tribunal also accepts that the applicant had not been provided with a full copy of his statement of account from SCU until he attended the hearing. Had the full statement been provided to him, it may have assisted him to resolve some of his confusion.

13. The Tribunal has considered the emails sent by SCU to the applicant on 10 March 2016, 24 March 2016 and 1 April 2016, regarding his placement on a Students at Risk status and a revised study plan. The applicant claims that he did not receive these as they were sent to his SCU email address, which he was unable to access at that point because he had not paid outstanding fees. While the applicant may have been excluded from his university emails, the Tribunal notes that the exclusion letter from the Department mentions a posted notice, which was sent on 18 July 2016. The Tribunal does not accept the applicant’s claim that he was unaware of the cancellation of his enrolment at SCU until he received a copy of the NOICC, noting that over 10 months elapsed from the cancellation of the applicant’s enrolment until the time the NOICC was issued.

14. On the applicant’s own evidence he performed poorly during his first semester at SCU, failing both subjects. The Tribunal notes that in his Student History Report for the following two sessions, the applicant is recorded as being ‘Absent Fail’. However, the Tribunal accepts that the applicant had a genuine confusion about the outstanding fees payable for the subjects he had already enrolled in. The Tribunal considers that the applicant is largely responsible for the misunderstanding in relation to the outstanding fees, given it is his responsibility as a student to ensure his fees are paid and they accurately reflect the subjects he is enrolled in. The Tribunal does however note the applicant was 19 at the time and was new to Australia, and was away from his family for the first time. The Tribunal also takes into account the confusion which appears to have been caused by SCU’s financial system, such as by the request for $1,500, which does not correlate to the fees payable for any of his subjects. The Tribunal therefore considers that the applicant was predominantly, though not entirely to blame for the circumstances in which the ground for cancellation arose.

15. Given these circumstances, the Tribunal gives this a little weight against cancelling the visa.

    Past and present behaviour of the visa holder towards the department

16. The Delegate noted in the Department’s decision that the applicant has been cooperative with the Department and provided information when requested. In this regard the Tribunal notes the statement the applicant provided to the Department prior to his visa being cancelled. The Tribunal gives this some weight against cancelling the visa.

    Whether there would be consequential cancellations under s.140

17. The applicant confirmed at hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140. On the evidence before it the Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention

18. The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained and removed from Australia pursuant to s.189. The applicant would need to seek advice regarding his immigration status.

19. The Tribunal is also mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that he could also be subject to a three-year exclusion period unless he meets the relevant Public Interest Criterion. The applicant may therefore be unable to complete his studies towards the Bachelor of Accounting at Group Colleges Australia. The applicant has provided documents relating to his studies at Group Colleges Australia, that indicate that he is now making good progress with his studies, has now completed approximately 25% of his course units, and that he has paid a significant amount in course fees. Given the circumstances of this case, the Tribunal considers it would be unfair for the applicant to be precluded for three years from applying for a further Student visa to complete his studies. The Tribunal gives this some weight against cancelling the visa.

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

20. Not applicable.

    Any other relevant matters

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

22. While the Tribunal considers that the circumstances in which the ground for cancellation arose indicate that the applicant is largely at fault, the Tribunal considers that SCU’s financial systems were partially to blame for his confusion about what fees were outstanding. The Tribunal has given this a little weight against the cancellation. The Tribunal notes however that the applicant’s purpose for his travel to and stay in Australia remains for the purpose of study, and that the applicant has, since the visa cancellation decision, made good progress with his studies. The Tribunal has given some weight against cancellation of the visa in respect of several of the matters which it must take into account. The Tribunal considers that the applicant is currently on track with his studies and the circumstances as a whole indicate he should be given one final opportunity to complete his Bachelor degree.

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

    DECISION

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

    Frank Russo
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.