Sundo (Migration)

Sundo (Migration) [2023] AATA 2566 (24 July 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Christian Jubil Sundo
REPRESENTATIVE:  Mr Sean Dong (MARN: 1066448)
CASE NUMBER:  2208579
HOME AFFAIRS REFERENCE(S):          BCC2020/2345436
MEMBER:Christine Kannis
DATE:24 July 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 24 July 2023 at 7:54am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in enrolment – COVID-19 lockdown – financial hardship – unsatisfactory course progress – non-payment of course fees – reported collective student allegations against college – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 137J, 140, 189, 198, 359
Migration Regulations 1994, Schedule 8, Condition 8202; rr 1.03, 2.43
CASES
Liu v MIMIA [2003] FCA 1170
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 2 June 2022 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams video on 10 July 2023. The Tribunal hearing was conducted with the assistance of an interpreter in the Filipino and English languages.
The applicant was represented in relation to the review.
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
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 (Cth) (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?
On 26 April 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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 full-time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 8 July 2020 to 26 April 2022.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 8 July 2020 to 26 April 2022 and the Tribunal finds that he breached condition8202(2)(a) of his visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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 his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
On 11 April 2022, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 8 July 2020 and had therefore failed to comply with condition 8202(2)(a) of his visa.
Response to NOICC
On 20 April 2022 and 28 April 2022, the applicant responded to the NOICC and provided the following information in a submission from his registered migration agent:
·From 31 March 2020, the COVID-19 lockdown in Victoria started. There were only four reasons to leave home: for food and supplies, for exercise, for medical care and for work and education.
·On 8 July 2020, he was not able to enrol in any of his courses due to the financial uncertainty caused by the COVID-19 pandemic. When he travelled to Australia, his parents were to provide financial support but due to COVID-19, his parents experienced loss/decrease of work.
·He has low help-seeking behaviour. A report by the International Education Association of Australia, states that “ International students tend to be associated with low help-seeking behaviours”. He did not seek assistance from the school because he felt he was not entitled to assistance because of his status in Australia. He did not seek help because he did not comprehend what needs to be done or prioritised. For example, when the letter from the school was provided to him, he did not view it as something that needs his urgent attention. Instead, he just acted when he realised that this issue is getting more serious.
·The school (Lawson College) did not attempt to support him during the COVID-19 pandemic. The pandemic caused hardship to students including him. Every time Lawson College emailed him, it was always about payment of tuition fees.
·He has no criminal or administrative cases in the Philippines and he did not intend to violate Australian law. If he did, he was not aware of the gravity of his action. His young age and inexperience in law matters in Australia led him to this stage.
·He wants to correct his action by doing the following: (a) Comply with his visa conditions by enrolling in a registered course. He has enrolled in a Certificate IV in Ageing Support at the Australian National Institute of Business and Technology; (b) Comply with the student visa conditions. He understands compliance with the visa conditions is a compliance to Australian law.
·If his visa is cancelled, the following may happen: (a) Severe financial damage to him and his family because his parents invested time and money in his education; (b) Great shame for himself and his family. A sense of “shame” is part of the Philippine culture and he would feel shame if he went home with nothing to show.
At the time of responding to the NOICC, the applicant provided:
·CoE for Certificate IV in Ageing Support created on 27 April 2022.
·A Certificate dated 26 April 2022 from the Office of the Human Resource Management Province of Cebu Republic of the Philippines which stated that the applicant’s parents were greatly economically affected by COVID-19 since March 2020 to the present day. The Certificate stated that the applicant’s mother lost her job and his father is a government employee who supported the family and the applicant’s education abroad.
·Letter dated 20 April 2022 from the applicant’s father in which he said the purpose of the applicant’s travel and study was for his personal growth and skill development. He said the knowledge and skill acquired will be used when he is back in the Philippines after graduation. He said they financially support him for his tuition at Lawson College and that COVID-19 affected their capacity to send him money.
·Email dated 1 July 2020 to the applicant from Lawson College advising that an invoice for $2,382 was due on 1 June 2020 and was overdue and that it is one of the conditions of his student visa that tuition fees are up to date. The email advised that this would have serious consequences in terms of compliance with the Department of Home Affairs and his ability to stay and study in Australia. It also advised that international students who fail to pay their tuition fees on time may risk having their enrolment and CoE cancelled.
·Email dated 8 July 2020 to the applicant from Lawson College notifying that his CoE had been cancelled due to unsatisfactory course progress. At this time Lawson College advised him that after 28 days, his student visa may be cancelled at any time. Lawson College strongly advised the applicant to contact the Department of Home Affairs on the potential impact on his student visa.
Evidence provided prior to the hearing
Prior to the hearing, the applicant provided documents which included but were not limited to a statutory declaration, documents evidencing the applicant’s high school results, a written submission from his representative, photos, Cash Convertor’s Revised Loan Offer, petition/complaint document and a CoE. Some of the documents provided at the time of responding to the NOICC were again provided prior to the hearing.
Email dated 28 May 2020 from Lawson College to the applicant advising in week 8 of Term 2 2020:
At this stage we will continue to deliver distance/online program for next week as planned. Please ensure that you regularly access your email address provided to Lawson College Australia [LCA], as this will be utilised by LCA to provide communication updates to you on a weekly basis.
Please refer to Attachment A-Student Guidelines- Cloud Learning @LCA From 1 June 2020 for detailed
information regarding the following:
· Lectures
· Assessment Submission
· Course Progress and Attendance Monitoring
· Support Services (includes Training and Assessment Support)
· Additional Information
Please refer to attachment Instructions-How to Submit an Assessment to provide you an overview of a step-bystep guide on how to submit assessments via Moodle.
You may also access the SESSION PLAN - CLOUD LEARNING From 27 April 2020 in your enrolled course to provide an overview of requirements for this period of training and assessment.
Should you have any concerns, Student Support will be available during this time via
email [email protected]/phone 0397912211 or +61 3 9791 2211.
Training and Assessment through Cloud Learning @LCA program will continue until further notice, or until further Australian Government directions.
Lawson College Australia sincerely thanks all students for remaining calm and positive and continuing to support and care for each other during this time of concern, and will continue to send you clear and consistent relevant information and advice as it becomes available.
Letter dated 9 June 2020 from Lawson College to the applicant regarding: Notification of intention to report - Visa condition 8202 – You must maintain satisfactory attendance in your course and course progress for each study period as required by your education provider. The letter advised that the applicant’s progress is assessed as unsatisfactory and informing him of its intention to report him to the Secretary of the Department of Education and Training via PRISMS for Unsatisfactory Course Progress. He was advised of his right to appeal against the intention to report if he thinks there are reasons why he should not be reported and 5 grounds of appeal were listed:
·Lawson College Australia has not recorded or calculated your results correctly
·There are compassionate or compelling reasons which have contributed to your unsatisfactory progress.
·.Lawson College Australia has not implemented our intervention strategy in accordance with our documented policies and procedures
·Lawson College Australia has not implemented other policies which may impact upon your results.
·Lawson College Australia has not made relevant policies available to you.
A petition/complaint purported to be signed by students in August and September 2020 calling the Australian Skills Quality Authority ,Commonwealth Ombudsman, Victorian Consumer Affairs, Department of Education, and other relevant government agencies to investigate Lawson College regarding, among other things, refusal to issue release notices, tuition fees, congested classrooms, cancellation of enrolments, combined classes of two different courses, inadequate facilities and poor teaching.
An Offer Acceptance and Enrolment Agreement dated 27 April 2022 from the Australian National Institute of Business and Technology for a Certificate IV in Ageing Support.
A statutory declaration dated 20 June 2022 made by the applicant was provided in which he stated that he borrowed $2,500 from a friend for school fees and $3,000 from a friend for AAT fees and said the monies had to be repaid by the end of the year. The document was not signed and was not witnessed. Following the hearing a signed and witnessed copy was provided to the Tribunal.
A reference dated 21 June 2022 from the applicant’s previous employer, Hardwick’s Meat Works Pty Ltd was provided which confirmed that he had been employed for 40 hours per week from 21 June 2021 to 2 June 2022.
A CoE for a Certificate IV in Ageing Support created on 1 May 2023.
A Cash Convertor’s Revised Loan Offer indicated to have been for School / Education / Work - School Tuition & University Fees however the document was not dated and the borrower was not identified. Following the hearing a letter dated 12 June 2022 from Cash Convertors to the applicant was provided. The letter advised that a loan of $1,250.00 had been approved.
Photos of the applicant’s cat.
Herald Sun articles dated 18 August 2020 and 15 May 2022 in relation to Lawson College including allegations made by students about deportation threats and excessive costs.
The written submission provided information not materially different to the information provided in the applicant’s response to the NOICC and the following relevant information:
·The applicant’s family was seriously affected by the COVID-19 pandemic since March 2020.
·When Victoria entered into the first lockdown from 31 March 2020 to 12 May 2020, the applicant was unable to work to earn his tuition fees of $ 2,382.
·The applicant attempted to communicate to the school about possible solutions to meet the payment obligations, but no assistance was received from the school.
- On 17 January 2023, the applicant recovered from serious financial hardship, so he applied for study right to be attached to his Bridging visa while his new course start has been deferred to 30 January 2023. On 15 February 2023, the study right application was refused and the new start date has been deferred to 17 July 2023
- As outlined in Direction 61 – Guidelines for considering cancellation of student visas for non-compliance with student visa condition 8202 and for considering revocation of automatic cancellation of student visas: Where a student visa has not been auto-cancelled for breach of condition 8202 under section 137J, decision makers may consider cancellation of the student’s visa under section 116 of the Act. Under paragraph 116(1)(b) as read with subsection 116(3) of the Act and subparagraph 2.43(2)(b)(ii) of the Regulations, a decision-maker must cancel a student visa if the decision-maker is satisfied that the student has not complied with condition 8202 (sub-subparagraph 2.43(2)(b)(ii)(A) refers) and that the non-compliance was not due to exceptional circumstances beyond the visa holder’s control (sub-subparagraph 2.43(2)(b)(ii)(B) refers).
- The applicant’s non-compliance with condition 8202 during the COVID-19 pandemic period was due to exceptional circumstances beyond his control and his reasons for non-compliance are listed examples recognised by the Department under Direction 61 as exceptional circumstances:
- Apart from the breach of visa condition 8202, there is no other adverse immigration history that negatively impacts the applicant’s student visa validity. When all of his circumstances are considered and as directed by Direction 61, the applicant’s breach of condition 8202 was due to exceptional circumstances. He is a genuine student and should be given another chance to commence studies in Australia with a proper education provider. It would be detrimental for him, especially for his mental health if he would miss the opportunity to study in Australia due to factors outside of his control.
Evidence at hearing

The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. 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 put to the applicant that according to the information from his PRISMS enrolment record, he was enrolled in the following courses of study:
a.He was enrolled in a Certificate IV in Ageing Support course which was cancelled on 8 July 2020 for unsatisfactory course progress.
b.He was enrolled in a Diploma of Leadership and Management course which was cancelled on 8 July 2020 for non-commencement of studies.
c.He was enrolled in an Advanced Diploma of Leadership and Management course which was cancelled on 8 July 2020 for non-commencement of studies.
d.He was enrolled in a Certificate IV in Ageing Support, the CoE having been created on 27 April 2022 . This CoE has been cancelled.
e.He was enrolled in a Certificate IV in Ageing Support on four more occasions and the CoEs were cancelled due to Change to CoE/Student Details or deferment/suspension-compassionate or compelling circumstances.
f.He is currently enrolled in a Certificate IV in Ageing Support and the course is due to commence on 17 July 2023.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 8 July 2020 to 26 April 2022, he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering his purpose for remaining in Australia.
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. The applicant told the Tribunal that he agreed with the information in PRISMS.
The Tribunal asked the applicant about the information provided in response to the NOICC which submitted that Lawson College did not assist him and that when he received a letter from them, he did not view it as something that needs urgent attention. The Tribunal referred the applicant to the email dated 28 May 2020 setting out guidelines for cloud learning including lectures and submission of assessments and asked him whether he followed the guidelines. In response he said the guidelines were for assessments only and said he followed them.
The Tribunal referred the applicant to the email from Lawson College dated 9 June 2020 advising of the intention to report him to the Secretary of the Department of Education and Training via PRISMS for Unsatisfactory Course Progress and setting out grounds upon which he could appeal the decision. The Tribunal asked him the reason he did not appeal the intention to report him. In response, the applicant said he had lost trust in Lawson College and said he saw the email as a threat.
The Tribunal referred the applicant to the email from Lawson College dated 1 July 2020 which referred to “serious consequences” for unpaid tuition fees and his ability to stay and study in Australia and the email dated 8 July 2020 which advised that his student visa may be cancelled and strongly advised him to contact the Department. The Tribunal asked the applicant the reason he did not contact Lawson College or the Department about his tuition fees or visa status. He told the Tribunal that he was scared and afraid that his visa would be cancelled.
The Tribunal referred the applicant to the response to the NOICC which stated that every time Lawson College emailed him, it was always about payment of tuition fees. The Tribunal asked him whether he considered it was reasonable that the education provider required tuition fees to be paid. In response, the applicant said he always paid his fees and the College wanted fees paid in advance. In contrast to this, the applicant also told the Tribunal that when he received emails from Lawson College about his unpaid fees, he became scared that the College would deport him. Noting that the pre-hearing written submission said the applicant attempted to communicate to the school about possible solutions to meet the payment obligations, the Tribunal asked him how may times he made such attempts and asked him whether he had proof of any attempts. In response the applicant said when he received the emails about unpaid fees he asked the College for an extension of time to pay the fees but they would only grant extensions of 2 days and said otherwise they would deport him. He said he did not have any emails or other proof to show he sought extensions of time because after classes he was just told to go to Admin and make a verbal request.
The Tribunal put to the applicant that he was not enrolled in any course from 8 July 2020 until a few days after he was sent the NOICC. In response, he said he was not able to obtain a CoE earlier because he was in financial hardship. The Tribunal pointed out that the CoE was obtained a few days after the NOICC and asked the applicant the reason he did not obtain it in the previous 3 months. In response, he said he did not know the reason.
The Tribunal asked the applicant to clarify the reason for providing the photos of his cat. He said if he loses his cat he will be depressed. He has had his cat since March 2022 and he got the cat because he was lonely. The representative’s pre-hearing written submission stated that the applicant’s cat was a critical emotional support to him during the pandemic period however the applicant’s evidence was that he has only had the cat since March 2022.
The Tribunal noted that the applicant’s enrolment in the Certificate IV in Ageing Support was cancelled on 8 July 2020 for unsatisfactory course progress and referred him to the pre-hearing written submission which stated that he admitted to missing a few assignments in Term 2 2020. In response, the applicant said the school was not a good environment and he had lost trust in the school. The Tribunal asked the applicant the reason he did not change education providers. In response, he said the College would not provide a release letter because he did not pay his tuition fees and so he felt stuck. No evidence was provided to substantiate this contention.
The Tribunal asked the applicant the reason the petition/complaint was provided, noting that he had not signed it. He said he had missed signing it. The Tribunal noted that there was no indication as to where the document had been presented and the outcome, if any. The applicant told the Tribunal that the petition/complaint was presented to the Ombudsman and that the outcome is pending. He said the document shows that Lawson College did not treat other students well.
The applicant told the Tribunal that during the 22 months from cancellation of his enrolment on 8 July 2020 until he received the NOICC, he supported himself from his savings, money from his parents and from working. He said from July 2020 to June 22, his parents sent him money on one occasion only and he had some savings. He said sometimes he also worked as a kitchenhand 2 days a week. Later in the hearing, when information covered by a s 376 certificate was put to him, he said he worked on a farm for 1 week in October 2020 (see below). The Tribunal put to the applicant that the letter from Hardwick’s meat Works Pty Ltd stated that he worked full-time from June 2021 to June 2022. In response, he disagreed that he worked full-time and said he worked only 2 or 3 days per week but sometimes worked more. The Tribunal notes the employer stated that he worked 40 hours each week. The applicant said since June 2022 he has supported himself from his savings and from limited support from his parents.
The Tribunal put to the applicant that he would have known from 8 July 2020, that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response, the applicant conceded that he was aware of his non-compliance. The Tribunal asked the applicant whether he contacted the Department when his enrolment circumstances changed. He said he did not contact the Department because he was overcome by fear.
Non -disclosure certificate
The Tribunal informed the applicant of the existence of a s 376 certificate and explained the effect of such a certification is that the Tribunal is given discretion whether to disclose the document and/or information covered by the certificate. The Tribunal informed the applicant that it had found the certificate to be valid because disclosure of the document and/or information would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods and would disclose, or enable a person to ascertain the existence or identity of, a confidential source of information.
The Tribunal informed the applicant that it would disclose the information covered by the s 376 certificate. The information related to an allegation received by the Department in September 2020 regarding a person named Bella who employed students who run away and hide in farms and work, and the applicant was named as such a person. In response, the applicant said he worked for 1 week in October 2020 harvesting cauliflower for Bella. The Tribunal notes that this employment was not disclosed until the s 376 certificate information was raised with him. The Tribunal accepts that the applicant worked for a person named Bella for at least 1 week in 2020.
The applicant told the Tribunal that he came to Australia to study and he has a compelling need to remain in Australia because he wants to finish his study and doesn’t want his parents’ money to be wasted.
In response to the Tribunal asking the applicant about the hardship that may be caused by cancellation of his visa, he said when he thinks of not being permitted to stay in Australia he becomes depressed and thinks of the money his parents have spent on his study. He said he doesn’t want his parents to worry about what he has done. He said he cannot leave his cat and his girlfriend of 11 months.
The representative submitted that there are compelling reasons to set aside the decision under review. The representative said that Lawson College was not a proper school and was guilty of misconduct. The representative submitted that although there was no evidence that the applicant had been mistreated by Lawson College, the petition/complaint shows it was a “visa factory school”. He also referred to the COVID-19 pandemic in 2020, 2021 and 20022.
The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.
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
The purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 22 months. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia.
The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, he said he wants to finish his study and doesn’t want his parents’ money to be wasted. The Tribunal does not consider this constitutes a compelling need.
The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study from 8 July 2020 to 26 April 2022 . There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for an extended period of 22 months weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation of the applicant’s visa will be disappointing to him and to his family because he will not be able to undertake study to obtain an Australian education qualification. The Tribunal accepts that the applicant has a cat and a girlfriend and that he does not wish to leave them and may suffer emotional hardship. The Tribunal gives the hardship that may be caused to the applicant some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 22 months which included the whole of 2021. He told the Tribunal that Lawson College was not a good environment and that they threatened to deport him if he did not pay his tuition fees. There was no evidence before the Tribunal to demonstrate that Lawson College treated the applicant unfairly or wrongly prior to cancellation of his CoE. The applicant did not sign the petition/complaint provided to the Tribunal. He said he missed signing it and the Tribunal notes it appears to have been signed by students over a period of 2 weeks. The applicant said the College did not attempt to support him during the COVID-19 pandemic however the email dated 28 May 2020 sets out detailed information regarding how to continue study during 2020. The email dated 9 June 2020 provided the applicant with grounds on which to appeal the intention to report him for Unsatisfactory Course Progress. The applicant conceded that missed a few assignments in Term 2 2020 . He said he did not appeal because he lost trust in the College. The emails dated 1 and 8 July 2020 made the consequences of failure to pay tuition fees very clear. The applicant said he did not contact the College or the Department because he was scared his visa would be cancelled. The Tribunal finds that the applicant was not precluded from contacting the College or the Department due to circumstances beyond his control.
The Tribunal notes the petition/complaint and the Herald Sun articles and accepts that there were Lawson College students who were unhappy with the College. No evidence of findings of misconduct against the College were provided.
The Tribunal accepts that the COVID-19 pandemic caused some students to have reduced capacity to pay tuition fees. In the present case, the Tribunal accepts that the applicant’s parents’ capacity to provide financial assistance may have been reduced however the evidence was that his father continued to work and the applicant told the Tribunal that his parents did not provide regular financial support at any time including prior to cancellation of his CoE on 8 July 2020.
In his response to the NOICC and in the pre-hearing written submission, it was contended that the applicant was unable to pay his tuition fees because his parents’ financial circumstances changed due to the COVID-19 pandemic. The applicant’s oral evidence at hearing was that from 8 July 2020 until the present day, he has financially supported himself from his savings and employment income and some limited assistance from his parents. However he provided a statutory declaration and a Cash Converters document which indicate that he borrowed money from friends and Cash Converters. His evidence was that he continued to work from July 2020 to June 2022 although he contended he did not work on a full-time basis at any time contended (contrary to the letter from Hardwick’s Meats Pty Ltd). The applicant’s continued employment (including full-time employment for 12 months) whilst not undertaking study has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a student visa holder.
The Tribunal asked the applicant whether he contacted the Department during the 22 months he remained in Australia as the holder of a student visa during which time he wasn’t studying. He said he did not so because he was scared. It is the responsibility of visa holders to notify the Department of changes in their circumstances that affect their visa and to be aware of the conditions of their visa and remain compliant with them. The Tribunal notes that the applicant was able to obtain a CoE within a few days of receiving the NOICC.
The pre-hearing written submission and the representative’s submission at hearing referred to Department’s policy in relation to General visa cancellation powers and in particular to Direction 61. However, reg 2.43(2)(b) requiring mandatory cancellation for non-compliance with condition 8202 unless non-compliance was due to exceptional circumstances beyond the visa holder’s control was repealed with effect from 13 April 2013.
The Tribunal finds that the circumstances in which the cancellation arose were not beyond the applicant’s control. The applicant’s enrolment was cancelled because he did not pay his fees and he contended that Lawson College would not grant an extension. The applicant’s clear evidence was that he lost trust with Lawson College however no evidence was provided to substantiate that he was treated unfairly or wrongly or that he sought a deferment due to compassionate or compelling circumstances. The applicant worked throughout most of the period he was not enrolled in a registered course including working as a kitchenhand, working for Bella and working full-time from June 2021 to June 2022 and in the Tribunal’s view, he should have had capacity to pay tuition fees in 2021. The applicant did not attempt to enrol in a course until the following year when he received the NOICC. Notably, the applicant conceded that he was aware of his non-compliance and did not contact the Department. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
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
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is 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 Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
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

There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.
The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Christine Kannis
Member

ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.

[2023] AATA 2566

24 July 2023

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