TA (Migration)

[2021] AATA 1564

TA (Migration) [2021] AATA 1564 (24 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr TRAN TRONG NHAN TA

CASE NUMBER:  2001610

HOME AFFAIRS REFERENCE(S):          BCC2019/3389409

MEMBER:Meredith Jackson

DATE:24 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 24 March 2021 at 4:20pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered higher level course ceased – applicant changed to diploma courses – limited academic progress – English language difficulties – applicant sought internal appeal process with education provider – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 48, 116, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.12

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 21 January 2020 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 (the Act).

2. The delegate cancelled the visa on the basis that the applicant did not maintain enrolment in a registered course at the same level as, or higher level than, the registered course in relation to which his visa was granted and there were grounds for cancellation under s116(1)(b) of the Act because he did not comply with condition 8202(2)(b) of the visa. The delegate found the grounds for cancelling the visa outweigh the reasons not to cancel the visa.

3.    The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4.    The applicant appeared before the Tribunal by telephone on 23 March 2021 to give evidence and present arguments. He was supported by his registered migration agent. The Tribunal also heard evidence from the applicant’s sister Tran Thao Nguyen Ta. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5.    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

6. 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?

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

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

(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):

(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 […]

(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 […]

Does the applicant accept he was in breach of condition 8202?

9.    The applicant does not dispute that in failing to maintain enrolment in an AQF Level 7 course he breached condition 8202.

Written and oral evidence

1. With his application for review, the applicant provided the Tribunal a copy of the delegate’s decision and his passport details. On the morning of the hearing, the applicant made further documentary submissions: a statement addressing his academic enrolments and circumstances; a copy of an academic record for a course he is currently completing and a response to the hearing invitation.

2. On 18 March 2021 the Tribunal had sent the applicant a copy of his record in the Provider Registration and International Student Management System (PRISMS). The statement submitted on the morning of the hearing responded in some detail to the applicant’s PRISMS record. It included a table of the applicant’s three course enrolments at the time of the visa application, culminating in the level 7 Bachelor of Business degree course; and a table outlining his course enrolments and his reasons for the cancellation of courses between 19 March 2018 and 7 February 2020.

3. The statement also outlined the applicant’s circumstances between 4 December 2019, when, as he confirmed at hearing, the department first attempted to contact him, and he chose not to answer the call. The submissions addressed the applicant’s most recent studies in a Diploma of Business and provided evidence that the applicant is two units from completion on 30 April 2014. This was supported by an academic record statement from Adelaide Institute of Business and Technology, the applicant’s current provider, for a Diploma of Business showing two units yet to be commenced or completed. The applicant stated in the written submission that once he completes the final two units of the course, he will apply to study a Bachelor of Business. The Tribunal notes the applicant is already enrolled in a Bachelor of Business and accepts that the statement was meant to convey an intention to study at AQF level 7.

4. In the hearing, in order to confirm the sequence of enrolments in the record and to identify any issues that may arise from other information in the PRISMS record, pursuant to s 359AA of the Act, the Tribunal referred the applicant to information about him in PRISMS and explained its relevance to his case. The Tribunal stated that the information might be the reason, or part of the reason to affirm the delegate’s decision. The Tribunal stated that while the chronological record of the applicant’s academic history in Australia, that is, information about his enrolments, commencements, cancellations and course finish dates appeared to align substantially with PRISMS it had not made up its mind about the information. The Tribunal gave the applicant time to study the record. The Tribunal asked if he wished to seek further time. The applicant stated that he had studied the record, understood it and its relevance, and would comment on the information immediately.

5. The applicant stated that his PRISMS record appeared correct and the Tribunal noted it seemed in most details to align with the sequences in his written submission.

6. The Tribunal pointed out that the information appeared to show that he had not been enrolled at AQF level 7 as required by his visa conditions for a period of more than eight months between 14 May 2019 and 30 January 2020 and that he appeared to have been studying diploma pathway courses in that time.

7. The applicant confirmed the sequence, and that he had breached a visa condition by not maintaining enrolment as required at AQF level 7 between 14 May 2019, when his provider had cancelled his enrolment in a Bachelor of Business, and 30 January 2020, when he next enrolled in a Bachelor degree. The applicant did not dispute that during this period of 8 months and 17 days, he was not enrolled as required.

8. On the evidence before the Tribunal, the applicant did not maintain enrolment in a full time registered course at the level for which he was granted the visa, as required. Accordingly, the applicant has not complied with condition 8202(2)(b).

Consideration of the discretion to cancel the visa

1. 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 Procedural Instruction ‘General visa cancellation powers’.

2. At the hearing, the applicant’s representative was asked to summarise the claims the applicant was making in relation to the exercise of the discretion not to cancel the visa. The applicant’s representative responded that:

   a.The key issue was that the period of enrolment was a consequence of the disruption of the initial Diploma of Business. The applicant had difficulty with the level of study because of inadequate English. His problems had all flowed from that. Because his sister lives in Sydney and he was in Adelaide, he was on his own during this period and he did want to admit failure. He “went into himself” during that period;

   b.In the eight months in which he was in breach of his visa conditions, studying below level 7, he did not realise he had to do something about the cancellation of his Confirmation of Enrolment (COE) in the Bachelor of Business. He referred the Notice of Intention to Consider Cancellation (NOICC) sent to him by the Department on 17 December 2019 to his college and understood that the school would deal with the matter. He got the wrong advice from them to launch an appeal internally. At the time he did not fully understand the difference between a diploma and a degree qualification because the former allowed him a pathway (articulation) to the latter.

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

1. The applicant came to Australia for the purpose of study. There was no other purpose besides studying. The applicant is single and has a sister living in Australia. He states the remainder of his family are in Vietnam. He does not claim that he has a compelling need to travel to or remain in Australia

The extent of compliance with visa conditions

1. The applicant claims he had always abided by his visa conditions. The Tribunal has no evidence before it that while he held the visa, until such time as he failed to maintain enrolment as described above, the applicant used the visa for purposes other than the basis on which it was granted. There is no evidence before the Tribunal that he may have breached other visa conditions while holding the visa or any previous or current visa. The Tribunal affords this light weight in his favour.

The circumstances in which ground of cancellation arose

1. The applicant’s first claim is that the period during which he failed to maintain enrolment at level was a consequence of the disruption of his initial Diploma of Business. He had difficulty with the level of study because of his poor English. All his problems flowed from there.

2. The applicant acknowledged in his submissions that the visa was granted on the basis of study in a package of courses at the South Australian Institute of Business and Technology Pty Ltd (SAIBT). They were: Academic English from 23 July 2018 to 28 September 2018; a Diploma of Business from 10 October 2018 to 31 May 2019; and a Bachelor of Business (Tourism and Event Management) from 29 July 2019 to 31 July 2021 at the University of South Australia (UniSA). He claimed that when he did not progress in Academic English as expected, his English course was cancelled for unsatisfactory attendance, and the start date of his Diploma of Business course was pushed out to 1 June 2019 and later to 24 June 2019. This had disrupted his study pathway. On 14 May 2019, a COE issued for a Bachelor of Business to begin on 29 July 2019 was cancelled for non-commencement of studies. As a result the applicant was not enrolled to study at AQF level 7 between 14 May 2019 and 30 January 2020.

3. After the NOICC was issued on 17 December 2019, and the visa was cancelled on 21 January 2020, the applicant took steps on 30 January 2020 to enrol at level 7, in a Bachelor of Business that commenced on 15 February 2021 and ends on 15 February 2023 at Adelaide Institute of Business and Technology AIHE. His PRISMS record shows he remains enrolled in that degree course. Currently, he is studying a level 5 Diploma of Business at AIHE, although the applicant claims he has not completed the course due to the impact of COVID19 on the study calendar. He claims that if the visa is not cancelled, he will complete and while there is an overlap with the start of his Bachelor course, he will catch up on missed modules in the Bachelor course, complete the degree and return to Vietnam.

4. The second claim is that he did not receive any notification about the Bachelor degree (AQF Level 7) course cancellation from SAIBT and relied on inaccurate advice from them when he received the NOICC. He stated it was only when he received an SMS from the department notifying him of the visa cancellation that he began to understand what had happened to the degree course. He claimed in response to the Tribunal’s questions, that after he received the NOICC sent on 17 December 2019, he understood from a truncated reading it was a temporary decision and an internal matter that could be addressed by the school. Regarding the visa cancellation, he stated in his pre-hearing submission:

   a.On date(d) 4 December 2019, the case officer of Immigration Department called but I did not pick up. The reason was because of the strange number, I did not call back after recognising the missed call. On 17 December 2019, the case office of Immigration Department called, and I answered. The case officer asked about my name and phone number and told me that I was going to receive email from the Department … After receiving NOICC form the department, I went to school and asked about the email of the Department. They answered me that the COE of my Diploma might be cancelled and told me to file and appeal to the school … I did. I did not provide any response to the Immigration Department. On 21 January 2020, I received a notification that my student visa was cancelled.

5. In the hearing the applicant stated that he had understood that he needed to appeal internally to the provider following the NOICC, and there would be no problem; they would issue him a new COE and he would be okay. He understood that if he was successful in his internal appeal, and he got a new COE and lodged it with the department, he would be alright. He claims that he just followed the instruction from the provider and sought no other advice. He stated that he did not know that he should respond directly to the department’s NOICC, because, he said in evidence, he did not read the notice all the way through. He claims that he was upset and scared when he got the notice and did not know what to do. Whatever the provider told him; he followed their instruction.

6. The Tribunal has considered the circumstances leading to the cancellation of the visa. The Tribunal accepts that the applicant’s failure to complete the first course of the package described earlier, the Academic English course, prompted a rescheduling of his course start dates.

7. The Tribunal does not accept that the rescheduling of course start dates is the sole reason why the applicant did not comply with his visa conditions by continuing to study at level 7 or higher. The Tribunal notes that he applicant had many opportunities to manage his course schedule, a routine activity for any student, and failed to do so to the point of not fully reading a notice warning him his visa may be cancelled because he was not maintaining enrolment in a degree. Then, in the face of this notice from the Department, he looked to the policy and processes of his education provider and focussed on appealing the cancellation of his diploma course. When that avenue was exhausted and revealed to be largely irrelevant to his visa condition breach, he made a claim of wrong advice from his institution. The applicant has provided some evidence post-hearing, including communications with his education provider and the Commonwealth Ombudsman, to which we return in paragraph [40] below, that he aggressively appealed a diploma course cancellation, and may somehow have thought he was going to avert his visa cancellation by doing so, but in the end, it was not helpful and not a replacement for responding to the NOICC.

8. The Tribunal accepts that the applicant was, as he claims, fearful when he got the NOICC. He did not tell his parents or Australian-based, education-experienced sister in Sydney. He went, as his representative stated “into himself” to deal with it, and for better or worse, concentrated on his issues with his institution. This is credible enough even without substantial evidence of psychological issues, but the remainder of his explanation is less convincing. The Tribunal does not accept the applicant’s claim that he did not know what was happening with his degree course cancellation until after the visa was cancelled and did not know the difference between a diploma and a degree. The chances that a student who, by the time of the degree course cancellation in May 2019 had spent more than a year in Australia studying, did not understand the difference between a diploma level course and degree level course, when he was enrolled in a package of both, is not credible. The applicant’s PRISMS record, which he has confirmed in writing and oral evidence, shows that at the time of the degree course cancellation, he was enrolled in an institution that is a recognised pathway college at UniSA, where it is co-located to deliver pathway (usually diploma) students to its degree programs. The Tribunal also considers it highly unlikely that the college provided incorrect advice, as claimed, when a student raised that a NOICC has been received. It is more likely that the applicant seized upon and internal appeal against cancellation of a diploma course to solve his problems, while not looking at the implications for his degree course. Apart from the fact that it is hard to conceive of an institution of such standing indicating to an international student that a NOICC could be successfully addressed by a provider through an internal appeal process; there was at best a conflation of two issues. One was that the institution had cancelled an enrolment for a diploma course for unsatisfactory academic reasons; and two, the Department planned to cancel the visa because he was not studying at AQF level 7. These were separate issues and it is reasonable to expect, given the notice sent, that the applicant appreciated that.

9. The Tribunal notes that the applicant has submitted that his Academic English course was cancelled on 8 October 2018 for unsatisfactory attendance. This suggests the applicant was less than diligent in achieving course progress, and that such a lack of diligence, logically, may have been the key factor in the circumstances that flowed. The Tribunal notes that the applicant states he did not read the NOICC in its entirety, and then did not respond to it, as the Department invited him to do. The Commonwealth Ombudsman lays out a series of academic failings that support that the applicant did not study effectively and it is noted the appeal went against him. For the Tribunal, these factors suggest the applicant has not taken appropriate responsibility for his academic or immigration situations on several occasions. The Tribunal considers that the circumstances he finds himself in derive from his action, or lack thereof, over time, and accordingly, the Tribunal concludes that the circumstances in which the cancellation occurred were not outside the applicant’s control and do not warrant the application of the discretion.

10. Having carefully considered the applicant’s claims separately and together, the Tribunal concludes that the cancellation arose from circumstances that were, at all relevant stages, within the applicant’s control and that he did not take adequate steps to manage them. It was open to him to access appropriate advice from various sources which he did not do until after the visa cancellation. The applicant’s representative stated in the hearing, in summary remarks, that the applicant acknowledged that he had not properly read the NOICC and if he had done so, he would have provided a different response. The Tribunal notes the claim has some merit, but on balance, the Tribunal considers the applicant has behind him, a long trail of failing to take responsibility and weighs the circumstances and responses that led to the cancellation, against him.

Degree of hardship that may be caused

1. The applicant states he wants to continue his studies because of his and his parents’ investment and in particular, needs an opportunity to complete a Bachelor degree. He claims he will do his best to study until graduation. He said he is due to complete his Diploma of Business on 30 April 2021 and is going well. The applicant stated that because of the global pandemic he had received an extension to do the final two subjects. His enrolment in a Bachelor of Business at AIHE is current, and while it  runs from 15 February 2021 to 15 February 2023 he will attempt to catch up with the missed start and “will try my best to complete the course and will take on more units to get it done.” The applicant states that if he cannot continue his studies, his future will be negatively impacted, because he came to Australia to get a degree and has spent a lot of time studying, so it will be very sad for him if the visa is cancelled. His family in Vietnam will not accept that the current diploma course is qualification enough, because he has invested a lot of time studying. His claims his English has improved a lot now and he believes he is ready for a Bachelor course. If the diploma course is completed, then he will be admitted into the level 7 course.

2. In the hearing, the Tribunal also heard evidence from the applicant’s sister, Tran Thao Nguyen Ta, a permanent resident of Australia. She stated that her own academic background is of one degree from Vietnam and a Bachelor of Commerce and Bachelor of Accounting double degree earned in Australia. She stated that their parents have contributed funds to invest in her younger brother’s education and if the visa were cancelled now, it would be very shocking and upsetting for them. They would be sad, and it would be difficult to accept such a result. If her brother were able only to complete the current Diploma of Business, that would not be acceptable in Vietnam as it is not a Bachelor degree. It would be considered as only a preliminary course for a degree. She stated she had been aware that at the time he received the notice from the department about the potential for cancellation that he was very upset and wanted to have an opportunity to continue his studies. She stated, in separate evidence, that the reason her brother did not respond to the department at the time was because when he got the warning, he had approached the school, but they gave him wrong information that internal appeal would be all he had to do. At the time, her brother said nothing to her; it was not until the visa was cancelled in February 2020 that she heard from him. She was in Sydney and he is in Adelaide. In the first trimester of his courses he did not even pick up her calls, there was no way to contact him. The Tribunal has considered the witness’ evidence and affords it some weight in favour of the applicant.

3. The Tribunal sympathises with the applicant and the remainder of the Ta family because he will inevitably suffer embarrassment over a cancellation and may disappoint his parents who have invested heavily in his education. However the Tribunal notes that the applicant is a young man, capable of further study in his home country, and is likely to attain a Diploma of Business from Australia, which, despite claims to the contrary at the hearing, should be of some value in Vietnam. The applicant has achieved valuable progress in English to the point of being ready to study at degree level, he states, and a qualification in the discipline of business. The Tribunal is mindful that he may be prompted by his experiences to apply himself with diligence in his home country and repay his parents for their investment.

4. The Tribunal has considered the hardship that may be caused to the applicant and his family and the implications of the cancellation on his future and affords the above considerations some weight in his favour.

Applicant’s past and present behaviour of the visa holder towards the department and Tribunal

1. The applicant’s history with the department is that he did not respond to the NOICC, and with the exception of notifying a change of address (he states), he did not otherwise contact the department about his circumstances. This weighs against him.

Whether there are mandatory legal consequences

1. The applicant has not raised the issue of legal consequences arising from the cancellation. However the Tribunal has considered the likely impacts of legal consequences in the case. The Tribunal accepts that if the applicant is forced to leave Australia, he will be prohibited from applying for most visas while he is onshore and, in those circumstances, will be barred for applying for Australian temporary visas for three years from the date of the cancellation. Further, he may be subject to detention if he does not engage with the department after visa cancellation and voluntarily depart Australia.

2. In the absence of the applicant making another successful visa application, or the Minister granting a visa, ultimately, he will not have authority to remain in Australia. If so, the applicant will have the opportunity to depart Australia. Whilst his continued failure to do so may ultimately result in detention or removal action, it is not a necessary consequence of the cancellation decision. Section 48 of the Act prescribes that a non-citizen who does not hold a substantive visa, and (relevantly) held a visa which was cancelled under s. 116 of the Act, may apply for certain prescribed classes of visas but not others. Regulation 2.12 prescribes the classes of visas, which does not include student visas. Consequently, this limits the visa applications the applicant can make whilst onshore.

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

1. In considering whether to exercise its discretion to cancel the applicant’s visa, policy guidelines suggest that the Tribunal should assess whether Australia would be in breach of its international obligations. These include the obligation in relation to non-refoulement pursuant to the Refugees Convention and the Refugees Protocol, Australia’s responsibilities regarding the rights of any children pursuant to Article 3 of the Convention on the Rights of the Child (CRC), and the International Covenant on Civil and Political Rights (ICCPR). No information is before the Tribunal that a cancellation outcome would breach of any of Australia’s international obligations and the Tribunal affords this consideration no weight.

Post-hearing submission

1. At the start of the hearing, the applicant’s representative, whose firm was appointed by the applicant on 29 January 2020, stated that he had been fully briefed by the applicant, that is, received all documents, only the day prior to the hearing. He stated that he may wish to be granted additional time to provide information in support of the case. The Tribunal noted that the applicant had already had significant amounts of time to prepare his case, the hearing having been set down and notified 38 days prior, on 15 February 2021. The Tribunal stated that it was not convinced of the need for an extension of time where there were no compelling reasons identified. The Tribunal stated that the representative had submitted a clear and detailed submission on the day of the hearing regarding the circumstances in which the cancellation arose; the issue of further submission time could be considered at the end of the hearing if the representative still felt there were issues warranting further inputs. During the hearing, the Tribunal afforded the representative an extended opportunity to orally summarise the applicant’s claims and gave him an opportunity to raise any further issues identified in the course of the hearing. The representative did not identify any new issues and the Tribunal said that it would not make a decision in the hearing or on the day of the hearing and the representative may contact the Tribunal the following day if he wanted to request further opportunities and any request would be considered.

2. At 12:45pm on 24 March 2021, the representative provided a further written submission about the applicant’s circumstances and did not request additional time. He provided information regarding the Ta family household and the applicant’s sister’s status as a permanent resident of Australia and birth certificates for her children; emails from the Ombudsman and SAIBT regarding the applicant’s diploma appeal; a handwritten note to his provider concerning two subjects he failed to pass.

3. The Tribunal notes the covering submission makes the following relevant claims which are recorded and assessed by the Tribunal below. The points below are confined to those claims that have not already been made in sworn evidence by the applicant or his witness; or by his representative. Those additional points are assessed by the Tribunal, in turn, as noted below:

   a.The applicant chose to live in South Australia independent of his sister. The Tribunal accepts that the applicant sought independence from his sister and accepts that he set himself a higher bar than he might have but finds this element does not mitigate his responsibility to abide by his visa conditions.

   b.The review applicant is not clear about what advice he was given by the school when he took them the NOICC; but it led him to believe that if he continued with his internal appeal, at that time, in its final stage he could go to the Commonwealth Ombudsman, and if he succeeded, the Notice will be “fixed”. The Tribunal has considered the communications provided that were exchanged between the applicant and the Commonwealth Ombudsman and find they relate entirely to the issue of SAIBT reporting the applicant for unsatisfactory course progress in a Diploma of Business (COE start date 24 June 2019, end date 31 January 2020). The Tribunal considers the exchanges are relevant to that issue alone, and not relevant to the decision other than to confirm that the applicant does not fully understand the purposes of review processes within an educational environment. That said, given that the applicant has confirmed he did not read the NOICC through, and cannot recall the advice given to him if and when he approached his provider about it, the Tribunal finds no new reason capable of enlivening the application of the discretion.

   c.The applicant did not know he must maintain his COE in a Bachelor course; he thought the whole issue was about his diploma course. The Tribunal accepts the applicant may have conflated the cancellation of his diploma course by SAIBT with advice the NOICC, but if so, it was because he did not properly read the NOICC. The Tribunal finds no mitigating circumstance in relation to the application of the discretion.

   d.The result was that the review applicant did not respond or communicate with the Department about the notice. The Tribunal’s response is as per [40.c] above.

   e.The applicant went through all four stages of the internal review. On 4 October 2019, he received an email from SAIBT about failing to make satisfactory academic progress and indicated their intention to report to the Department for this. The Tribunal’s response is as per [40.c] above.

   f.The applicant has requested his current COE and confirmation of attendance. The Tribunal accepts that the applicant is currently enrolled in a Bachelor of Business and is currently studying a Diploma of Business.

   g.The review applicant now has a better understanding of his visa conditions and obligations and apologises to the Tribunal and the Department. The Tribunal accepts the applicant is remorseful over his actions.

   h.He has continued his diploma course at AIHE since February 2021. The Tribunal notes the applicant is now close to completion of a diploma.

   i.The applicant has obligations to his 61 year old father and 58 year old mother in Vietnam. The Tribunal sympathises and acknowledges the claim but finds it does not enliven the application of the discretion.

Conclusion

1. The Tribunal has carefully considered all the applicant’s claims and evidence and weighed its considerations in the case accordingly. The Tribunal does not consider the combined weight of the individual elements that it weighs in the applicant’s favour, or any of those elements alone, to be sufficient to justify setting aside the delegate’s decision. Therefore, having regard to all the evidence before it, and balancing the matters in favour of setting aside the delegate’s decision and affirming it, the Tribunal concludes that the correct and preferable exercise of its discretion favours affirming the delegate’s decision to cancel the applicant’s student visa.

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

DECISION

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

Meredith Jackson
Member

ATTACHMENT

Migration Regulations 1994

…

Schedule 8

1. (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.