Sultanul (Migration)

[2019] AATA 1375

Sultanul (Migration) [2019] AATA 1375 (7 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Arefin Sultanul

CASE NUMBER:  1703165

HOME AFFAIRS REFERENCE(S):           BCC2017/306861

MEMBER:Mr S Norman

DATE:7 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 07 May 2019 at 2:35pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – poor academic progress – length of non-enrolment – not a genuine student – mental health issues – 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 16 February 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 572 Vocational Education and Training Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The delegate cancelled the visa on the basis that the applicant was determined to have beached condition 8202(2)(a) – enrolment. 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 6 May 2019 to give evidence and present arguments. The applicant was represented by his more recently engaged agent at hearing.

4. 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

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

   Did the applicant comply with Condition 8202?

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

   ·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2)

   ·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

7. In the present case, the applicant’s Student visa was cancelled on the basis the applicant was not enrolled in a registered course. The applicant was granted a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa on 27 November 2015 (stay period to 31 May 2017). By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 1 February 2017, the applicant was advised that information in the Provider Registration and International Student Management System (PRISMS) indicated he had not been enrolled in a registered course of study since 20 April 2016. Further, it therefore appeared he did not meet condition 8202(2)(a); and that his visa may be cancelled under s.116(1)(b) of the Act.

8. By letter dated 7 February 2017,[1] the applicant replied to the NOICC. The delegate did not believe the applicant disputed there were grounds to cancel his visa. However, in migration agent submissions dated 2 May 2019,[2] the agent disagreed. It was claimed inter alia the applicant disputed there were grounds to cancel, and that he had returned from Bangladesh in May 2016[3] (several trips to Bangladesh were referred to[4]). The agent also said the applicant continued with his studies ‘until his circumstances changed … due to health’. The agent also said the NOICC claimed the applicant had not been enrolled in a registered course since 20 April 2016 – and the applicant had obtained a COE on 4 May 2016[5] (and the Tribunal accepts the delegate incorrectly referred to 20 April 2016 in the NOICC). The agent also said the applicant did not know his Student visa was cancelled and that his education provider did not tell him (though the applicant conceded he had ceased attending some courses).

   [1] Department – folio 19.

   [2] Tribunal – from folio 116.

   [3] See also Tribunal – folio 107.

   [4] Tribunal – folio 107.

   [5] Tribunal – folio 104.

9. At hearing, the Tribunal then told the applicant that subject to his comments, the following information may be the reason or part of the reason, for affirming the decision under review. The Tribunal had advised the applicant that he may request an opportunity to provide further information after the hearing (though no such request was made). The Tribunal also advised that the information was relevant as it may satisfy the Tribunal that grounds existed to cancel the applicant’s Student visa and (words to the effect) regarding whether the Tribunal may exercise the discretion to cancel the visa (the s.359AA opportunity).  

10. That information was that the PRISMS record obtained by the Tribunal indicated the applicant had only successfully completed three Diplomas (actually only two Diplomas); and that he was said to have completed 70% of a third Diploma - since arriving in Australia in late 2011. More importantly, the Tribunal noted the applicant had obtained a second (5 year) Passport in 2016, and the Diploma of Management course he commenced in May 2016 and which was related to the second passport (course duration 9/05/2016-9/04/2017), was cancelled on 21 November 2016 (over two months prior to the NOICC being issued).

11. At hearing, the applicant lodged evidence of having attempted four subjects in the abovementioned Diploma of Management course (9/05/2016-9/04/2017). The Tribunal noted that in the period 9/05/2016 – 10/07/2016 the applicant had unsuccessfully attempted two subjects. However, in the period 8/08/2016 to 9/10/2016, the applicant had successfully completed two subjects; prior to ceasing his studies. As explained by the agent at hearing, this means he had completed two out of eight subjects prior to ceasing this course.

12. However, the applicant’s and his agent’s responses to all this is discussed below (as those responses principally related to whether the Tribunal should exercise the discretion to cancel). That being said, and based on the accepted information before it, the Tribunal is satisfied the applicant failed to maintain enrolment for a period of over two months immediately prior to the NOICC being issued. The Tribunal accepts the applicant was not enrolled in a registered course.

13. Accordingly, the applicant has not complied with condition 8202(2)(a).  

    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’.

15. Regarding the purpose of the applicant’s travel to and stay in Australia, the applicant (who is from Chittagong, Bangladesh) said he ‘moved to Australia in 2011’ on a Student visa for the purposes of study. However, PRISMS indicated the applicant had not been enrolled in any registered course for over two months prior to the NOICC being issued.

16. At hearing, the Tribunal then provided the applicant a further s.359AA opportunity. After advising the applicant he may seek further time to respond (no such request was made), the Tribunal advised this information was relevant as it may satisfy the Tribunal the applicant was not a genuine student and that (importantly) his purpose for remaining in Australia, was not for study. The relevant information was that since arriving in Australia in late 2011 (around 8 ½ years prior to the Tribunal hearing), the applicant had only completed one brief English language course (in late 2012); one Diploma of Management course (on or around 9 May 2014); and a second Diploma of Management course (in April 2016). Further, that since arriving in Australia, the applicant had engaged in study in a course that he had gone on to successfully complete, for around 28 months since his arrival in late 2011 (some 100 months prior to the Tribunal hearing).

17. At hearing, the applicant’s agent had also lodged an email from Kings Own International College dated 19 December 2018, which provided reasons for not providing the applicant a COE for a Bachelors degree (and which information was not disputed by the applicant). Those reasons included that the applicant had engaged in ‘course hopping [and there were times] where [the applicant] had not followed the same study program’.

18. When discussed, the applicant’s agent then said that PRISMS was wrong and the applicant had not successfully completed any Diploma course since arriving in Australia in late 2011. When the Tribunal noted this may constitute quite strong evidence the applicant was not a genuine student, the agent withdrew this submission. The applicant said he had completed two Diploma courses (or at least the course work for same), but he had not returned to obtain the Diploma certificates. The Tribunal does not accept this supports a finding the applicant’s intention for remaining in Australia, is for the purposes of study; as it would commonly be the case that a genuine student would obtain the certificates (for the Diplomas) that the applicant had successfully completed.

19. The applicant’s agent also said inter alia the applicant’s most recent study in a Diploma of Information and Technology Newtworking (13/08/2018-28/06/2019), was evidence the applicant was a genuine student. The applicant also said he now wished to ‘fulfil his parents wish’ that he obtain a Degree in Australia. However, the Tribunal noted that in its experience, an applicant may discuss with the Department whether they could remain in Australia to complete a course (the third Diploma course ceases on 28/06/2019). The Tribunal also said (words to the effect) the applicant’s lengthy periods of not studying towards a successful qualification, may satisfy the Tribunal (and now does satisfy the Tribunal), the applicant is not a genuine student.

20. After considering all the accepted evidence, the Tribunal is not satisfied the applicant’s present intention is to remain in Australia for the purposes of study.

21. Regarding the extent of compliance with visa conditions, as noted herein the applicant had not been enrolled in a registered course between 21 November 2016 and 6 February 2017. The applicant had also not studied for other periods (at least not for a course he had successfully completed – discussed below). The applicant’s agent said this was due to inter alia the applicant not knowing his Student visa was cancelled (though the Tribunal rejects this as the applicant would have been aware of this given first, he responded to the NOICC, and second, he was issued the Student visa cancellation letter on 16 February 2017). After then considering all the accepted claims herein, the Tribunal believes the applicant’s breach to have been significant.

22. Next, and regarding the hardship that may be suffered by the applicant or his family if his Student visa is cancelled, by letter dated 7 February 2017[6] the applicant said he wants to fulfil the wishes of his parents whose “dream was to help him secure a successful degree from overseas”. He is now mentally prepared to “comply his degree”. This would be a way of “coping with his loss and grief”[7] (discussed below). In migration agent submissions dated 2 May 2019,[8] the agent said that cancellation of the applicant’s Student visa would lead to ‘mental, emotional and financial hardship to the applicant and his family’; and the applicant has been under stress for many years.

    [6] Department – folio 19.

    [7] Department – folio18 (reverse side).

    [8] Tribunal – from folio 116.

23. When discussed at hearing, the applicant explained his father was a businessman in Chittagong and only worked around four hours per day (he was semi-retired due to health issues); that his older brother worked as an assistant manager in a garment factory in Dhaka (arounds five hours drive from Chittagong); and his elder sister is married and lives with her businessman husband in Saudi Arabia. The applicant also said that he (the applicant) had been unemployed in Australia between October 2015 and 6 May 2019. He explained that in that time his father’s (successful) business funded his studies and residence and other expenses in Australia. However, the applicant felt that he would have better work and other options in Bangladesh if he completed a degree course in Australia.

24. However at hearing, the Tribunal noted the now 29 year old applicant had also said that if he had to return to Bangladesh, he would take over the father’s successful garment business in Dhaka. Therefore, the Tribunal is not satisfied the applicant would be ‘held back’ by returning to Bangladesh without a degree from Australia. Furthermore, the Tribunal noted the applicant had also said that he had undertaken a six months degree course in Dhaka prior to travelling to Australia, and when asked he conceded that he could continue to study in Bangladesh.

25. After then considering the evidence, the Tribunal is satisfied the applicant or his family may suffer some limited hardship if his visa is cancelled. I accept that his father may be disappointed in him and he may be disappointed in himself. I also accept (as claimed by the applicant), that he would not have the ‘social status’, in Bangladesh arising from obtaining a degree in Australia.

26. As for the alleged mental health issues that may arise if the applicant’s Student visa is cancelled, the Tribunal accepts the applicant’s father wished him to successfully complete a degree in Australia, but without more, I am satisfied that any stress suffered by the father would not be substantial (the father’s circumstances are explained elsewhere herein).

27. Regarding the applicant’s mental health, the Tribunal notes the applicant had ceased work around October 2015, and from that time he had resided in a share home (all expenses paid for by his father). I also accept that though the applicant said he had no other family members in Australia, he had a close friend of his father, who resided near him and who was able to provide him with advice and guidance. Further, though the applicant had been able to travel Australia / Bangladesh / Australia on several occasions since arriving in Australia in late 2011, and he had been able to afford surgery in Bangladesh in early 2016, at no time did he seek any medical assistance for his claimed anxiety/depression. Furthermore, his evidence at hearing that he could study in Bangladesh and take over the running of his father’s successful business, did not satisfy the Tribunal that cancelling the applicant’s Student visa would lead to ‘mental, emotional and financial hardship’ for him. As stated at hearing, the Tribunal may find (and now does find), that if he returned to Bangladesh, he benefit from the guidance and support of his family.

28. That being said, the Tribunal accepts that if the applicant’s visa is cancelled he and his family may suffer some limited hardship; including that he and his father may be disappointed in him.

29. Regarding the circumstances giving rise to the cancellation of the applicant’s Student visa, by letter dated 7 February 2017,[9] and by undated statement,[10] the applicant said he had witnessed many arguments between his parents at home (though at hearing he explained he was close to both his parents); that his siblings moved away from home and he was the youngest in the family and close to his parents; that he had achieved “good grades before he moved to Australia in 2011”; that his mother suffered from a “chronic medical illness”; that his mother suffered a stroke in 2012 and that no one was there to support her; that his mother was subsequently on life support for four days; that he then wished to return to Bangladesh but “unfortunately his application for leave from his college was [initially] refused”, but later approved.  The applicant said he returned to visit Bangladesh “a few times since moving to Australia”.

    [9] Department – folio 19.

    [10] Tribunal – from folio 109.

30. In an undated statement, the applicant also explained that his mother suffered a stroke in 2012 and was unwell with no support.[11] He said he was (words to the effect) the primary supporter of his mother.[12]  The applicant then said his mother became seriously ill in April 2014; he travelled to be with his mother; his mother passed away but he was with ‘his mother moments before she passed away’.  

    [11] Tribunal – folio 109.

    [12] Tribunal – folio 109.

31. After considering the evidence, the Tribunal accepts the applicant was close to his mother, that he wished to return to see her ‘more often’, that his mother passed away on 26 December 2014,[13] and that the applicant then had returned to Australia.

    [13] See Death Certificate – Tribunal – folio 69.

32. Next, the applicant also said his father became unwell (after 2014); it was difficult for the applicant to settle into a new environment (since arriving in Australia in late 2011 – though the Tribunal was ultimately not satisfied this explained his poor academic progress since arriving); he wished to make his parents happy by securing a “foreign degree”, but he also wanted to support his parents ‘both mentally and physically’.[14]  The applicant also lodged some medical evidence relating to his parents.[15]

    [14] The applicant repeated much of these claims in an undated statement: Tribunal – from folio 109.

    [15] Tribunal – from folio 87.

33. In an undated statement,[16] the applicant said that in August 2018 he commenced a Diploma of IT – Pacific College of Technology; he was later ‘granted’ a Bridging visa in December 2018 (the Tribunal understands the applicant was granted a BV E shortly after his Student visa was cancelled but only found out about same at a later date); that he applied for a Bachelor of IT course but that was refused as he did not have a proper visa (see the aforementioned Kings Own International College email dated 19 December 2019) ; that he applied for other Bachelor courses but was not accepted; that he had now completed 70% of “my course” – the Diploma (though as stated at hearing, he could discuss with the Department the possibility of remaining in Australia to finish that course in late June 2019 and prior to departing Australia); that his father became unwell in May 2018 and had “major surgery of his shoulder in September 2018”; and that the applicant “harboured a sense of guilt for not being with his parents”; that he travelled to Bangladesh several times in the period 2012/2016; that he now wants to complete a degree in Australia (though his last substantive visa was a Student (Temporary) (class TU) Vocational Education and Training Sector (subclass 572) visa) as this would be a “a symbol of social status”; and he now wants to make his father proud. The applicant also lodged:

    ·     COE for a Diploma of Information Technology Networking:  13 August 2018-28 June 2019[17]

    ·     COE for an Advanced Diploma of Network security:  15 July 2019-12 July 2020[18]

    ·     Academic transcript – Diploma of Information Technology Networking dated 24 April 2019 / indicating that in the period between September 2018 and April 2019 the applicant had completed 10 subjects and was awarded a “C” (Competent) for each subject[19]

    ·     a letter from Pacific College of Technology dated 24 April 2019 stating the applicant was enrolled in a Diploma of Information Technology Networking; followed by an Advanced Diploma of Network Security from 13 August 2018. Further, that he was scheduled to complete the Advanced Diploma on 12 July 2020. Further that he had completed more than 70% of his Diploma of Information Technology Networking and was scheduled to complete this course on 28 June 2019[20]

    and

    ·     COE for a Diploma of Business:  9 May 2016-9 April 2017[21]

    ·     a Progress Report dated 4 April 2014 from Strathfield College claiming the applicant had passed four subjects (50%)[22]

    [16] Tribunal – folio 108 (reverse side).

    [17] Tribunal – folio 106.

    [18] Tribunal – folio 105.

    [19] Tribunal – folio 103.

    [20] Tribunal – folio 102.

    [21] Tribunal – folio 104.

    [22] Tribunal – folio 101.

1. At hearing, the applicant eventually conceded, and the Tribunal accepts, that after the father’s surgery in late 2018, the father still chose to reside in Chittagong (rather than with a son in Dhaka), that he did not apparently need a carer, and that he was still able to attend his place of work (a garment factory in Chittagong) for approximately four hours per day. Therefore, while the Tribunal accepts the father had suffered some health issues in recent times, the Tribunal is satisfied his health is sufficient for him to live (apparently) alone, and continue to work.

2. Next, the applicant said that in November 2015 he (the applicant) fell down some stairs and could not walk. His doctors suggested he obtain an X-ray and a MRI; the doctor said it was possibly an anterior cruciate ligament tear[23] (medical evidence dated 20 November 2015 was lodged[24]). The applicant then said that “Medicare BUPA refused him to bear all of his cost cover”. In February 2016, the applicant returned to Bangladesh for knee surgery – which took place on 25 March”.[25] It was also recommended he take one month bed-rest but a few days later, on 24 April, he fell down in a washroom and was again admitted to hospital. This time the doctor suggested he needed three months of bed-rest (documentary evidence was lodged). Also lodged was an undated medical certificate claiming the applicant would be unfit for duty or study from 25 November 2015 to 8 December 2015.[26]

   [23] Tribunal – from folio 100.

   [24] Tribunal – folio 100.

   [25] See Tribunal – from folio 97.

   [26] Tribunal – folio 98.

3. After considering the evidence, the Tribunal accepts the applicant suffered an injury in November 2015, that he exacerbated this injury by falling a second time, and that he had returned to Bangladesh to obtain surgery in March 2016.  He had then returned to Australia.

4. Next, the applicant said he returned to Australia to commence a new course on “5 May 2016, which was to finish on 9 April 2016” (sic) (actually 9/04/2017 - see PRISMS[27]).  However, “luck is always unfair with him … In August his father had a stroke and was placed in the intensive care unit”. The applicant again had “general anxiety” over his father’s condition and this affected his mental state – and he could not concentrate on his studies[28]. He said he was the only one who could look after his father. However, as discussed above, the applicant’s father is now still working part time in his business, and the Tribunal is satisfied the father’s health is sufficient for him to live (apparently) alone, and continue to work.

   [27] Tribunal – folio 119.

   [28] Tribunal – folio 108.

5. When then discussed at hearing, the applicant said he only sought a deferment from his studies in Australia, on one occasion in 2014 (and same was granted for three months). He said his mental health was poor after that time and he thought he would be OK. His agent said the applicant was not advised his Student visa was cancelled, though as stated at hearing I may not (and now do not) accept this claim as he responded to the NOICC and he was issued the Cancellation decision on 16 February 2017. The agent also said the applicant was not advised by his Colleges that he was (ie) not attending his studies; though as stated at hearing (words to the effect), the applicant had held more than one Student visa in Australia, and the Tribunal is satisfied he would have understood the need to continue to attend his studies.  

6. Next, the applicant said he had a “commitment towards his studies”, but had developed ‘general anxiety’ due to his mother’s health, his father’s health, and his own circumstances. The applicant also said that during this period it was “very unfortunate that he did not have access to any counselling services while he was going through this emotional journey”. He then said that “current literature on stress, indicates that people could express their negative emotion in a variety of ways. This may include poor concentration, avoidance, anger outbursts, and feelings of guilt. Considering his past history, it appears that he harboured an intense sense of guilt for not being with his parents and felt emotionally overwhelmed which might have impacted his decision to go to Bangladesh and be with his parents.” He then said he travelled to Bangladesh a few times during the period of 2012/2016. He now wishes to fill the wishes of his parents. He also said he is now mentally prepared to “complete his degree”. This would be a way of “coping with his loss and grief”.[29]

   [29] Department – folio18 (reverse side).

7. Next, and regarding the claimed mental health issues for the applicant, the Tribunal notes the applicant had access to the monies to reside in Australia (and for the period October 2015 to 6 May 2019, he had not worked as his father had sent him money); and he had the money to travel to and from Bangladesh on multiple occasions. He also had resided in the same share house from late 2016; and this was near his father’s friend in Australia (claimed to be a Professor of Law at Western Sydney University), and this friend had been able to provide the applicant guidance and advice. However, the applicant had not claimed to have even enquired about seeking any assistance for his claimed mental health issues in Australia. When discussed, he said this was because he thought he would be OK, but the Tribunal notes the applicant also understood he needed to continue to maintain enrolment and to study, and he had failed to study for lengthy periods of time. Therefore, and given the resources and guidance available to the applicant, I am not satisfied his claimed mental health issues, prevented him from successfully completing studies in Australia, for the length of time he claimed.

8. The Tribunal also notes that a Student visa holder may change their course on arrival in Australia, but in this case, the applicant had only successfully completed one brief English language course and two Diploma courses since arriving in Australia in late 2011 (though a third is imminent), and he had only engaged in 28 months of study where he had successfully completed a course (or was near completion), in the (approximately) 100 months he had (principally) resided in Australia. The Tribunal is satisfied this is evidence the applicant is not a genuine student and that his claimed mental health issues, for which he sought no treatment, do not explain why his academic progress in Australia has been poor.

9. At hearing, the applicant’s agent said (words to the affect), the applicant did not need to seek further deferments (after 2014) as he continued to study (even if not successfully). However, the Tribunal notes the applicant successfully completed his first Diploma (13/05/2013-9/05/2014); and he successfully completed his second Diploma (5/10/2015-1/04/2016); and he commenced a third Diploma which is nearing completion (13/08/2018-28/06/2019). He had also obtained a COE for an Advanced Diploma. But this means that after arriving in Australia in late 2011, the applicant only successfully completed a short English language course in late 2012; up till he commenced further successful studies on 13/05/2013 – some four months later. After completing the first Diploma on 9/05/2014, the applicant then commenced his second successful Diploma on 5/10/2015 – some 17 months later. After completing the second Diploma on 1/04/2016, the applicant commenced his third Diploma on 13/08/2018 – some 16 months later.

10. The Tribunal notes the applicant said he commenced (and attended classes) but did not complete other courses since arriving in Australia (and the Tribunal accepts this is correct). The Tribunal also accepts the agent’s claim the applicant may not have always needed to seek further deferments. However, and in spite of the applicant’s claims to wish to study a degree in Australia, amongst other things, the successful completion of only two Diploma courses since the applicant had arrived in Australia (in late 2011), has not satisfied the Tribunal the applicant is currently a genuine student. Neither do I accept the circumstances claimed to give rise to the cancellation, or any of his other circumstances, justify the applicant’s lack of progress in his studies in Australia.

11. Next, the Tribunal has no evidence the applicant has been uncooperative with either the Department or the Tribunal. The Tribunal has no evidence that any other person’s visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled. Based on all the accepted evidence herein, the Tribunal is not satisfied the applicant has a compelling need to travel to or remain in Australia.

12. Next, if the applicant’s Student visa is cancelled, he would become an unlawful noncitizen and liable to be detained under s.189 and removed under s.198 of the Act. However, none of the accepted evidence indicates he would be subject to indefinite detention in Australia. Further, the Tribunal believes he could retain (at least temporarily) his Bridging visa in order to remain in the community to finalise his affairs prior to departing. The Tribunal also notes that if the applicant’s Student visa is cancelled he would be subject to s.48 of the Act, and he would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013; meaning he might not be granted a temporary visa for three years from the date of cancellation (ie from 16 February 2017).

13. Finally and briefly, given the evidence of lengthy periods where the applicant had not studied or not successfully completed any course, though he had not even worked since October 2015; and given the Tribunal was not satisfied this was explained by his and his family’s health issues; and given the claimed ‘course hopping’; and given his failure to obtain or follow guidance from his family in Bangladesh and/or his father’s friend in Sydney and or any mental health counsellor (even though he had the financial wherewithal to obtain same), the Tribunal is satisfied it should exercise the discretion to cancel the applicant’s Student visa.

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

    DECISION

15. The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

    Mr S Norman
    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.