Thapa (Migration)

[2020] AATA 1450

Thapa (Migration) [2020] AATA 1450 (7 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bharat Thapa

CASE NUMBER:  1933299

HOME AFFAIRS REFERENCE(S):          BCC2019/3261933

MEMBER:Michael Biviano

DATE:7 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 07 February 2020 at 9:20am

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – enrolment in a higher level registered course ceased – applicant changed to vocational course – financial hardship – current enrolment breaches visa condition – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 116
Migration Regulations 1994, Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 20 November 2019 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 subclause (2)(b) of condition 8202 of his visa was breached as he was not enrolled in a registered course at the same level or a higher level than the registered course in relation to which the visa was granted. 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 21 January 2020 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent.

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:

   a.be enrolled in a full-time registered course: 8202(2)(a);

   b.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: 8202(2)(b);

   c.has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c); and

   d.has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c).

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

9. In the present case, the applicant’s visa was cancelled on the basis that the applicant was in breach of subclause (2)(b) of condition 8202 of his visa as he was not enrolled in a registered course at the same level or a higher level than the registered course in relation to which the visa was granted, for the period from 8 August 2017 to the cancellation of the visa on 20 November 2019.

10. The decision record of the delegate of the Department of Home Affairs (the Department) on 20 November 2019, which was provided to the Tribunal by the applicant, confirms that the Department cancelled the Student (Temporary) (Class TU) (Subclass 500) visa, which was granted on 8 February 2017, and the reasons for the cancellation of the visa (Decision Record).

11. Prior to the hearing, on 5 November 2019, the applicant filed with the Department:-

    a.Response submissions dated 5 November 2011;

    b.Confirmation of Enrolment (COE) number B0B39E96 created on 30 October 2019 for Diploma of Information Technology at Wentworth Institute commencing on 28 October 2019 and concluding on 25 October 2020;

    c.COE number B0BF3D31 for the Bachelor of Interactive Media at Wentworth Institute commencing on 16 November 2020 and concluding on 11 November 2022;

    d.Certificate of Relationship dated 28 October 2016;

    e.Grande International Hospital USG Report for Meera Thapa and supporting documents dated 8 October 2017.

12. On the day of the hearing, on 21 January 2020, the applicant, by his migration agent, filed documentation in support of his application, including:

    a.Confirmation of Enrolment (COE) number A0F30F31 for Diploma of Accounting at Sydney Metro College commencing on 15 October 2018 and concluding on 13 October 2019;

    b.Grande International Hospital USG Report for Meera Thapa and supporting documents dated 8 October 2017;

    c.COE number B0B39E96 created on 30 October 2019 for Diploma of Information Technology at Wentworth Institute commencing on 28 October 2019 and concluding on 25 October 2020;

    d.Submission from the applicant’s agent (Submission);

    e.COE number 90A9AA98 created on 10 August 2017 for the Diploma of Information Technology at Strathfield College commencing on 21 August 2017 and concluding on 17 August 2018;

    f.COE number B0BF3D31 for the Bachelor of Interactive Media at Wentworth Institute commencing on 16 November 2020 and concluding on 11 November 2022; and

    g.Extracts from the applicant’s bank account statements with the Commonwealth Bank of Australia numbered 5 to 7.

13. The applicant gave evidence that he completed high school in Nepal and he arrived in Australia from Nepal in March 2017 after obtaining his Student Class TU (Subclass 500) visa on 8 February 2017 to study a suite of courses including:

    a.Diploma of Engineering (Standard) at Insearch Limited, which was associated with University of Technology Sydney (UTS), commencing on 6 March 2017 and concluding on 19 January 2018; and

    b.Bachelor of Engineering (Honours) at UTS with a start date of 19 February 2018 and an end date of 31 December 2020.

14. At the time the visa was granted, it was granted on the basis that he was to be enrolled in a suite of courses including the Bachelor of Engineering (Honours), which is a course at level 8 of the Australian Qualification Framework (AQF).

15. The applicant gave evidence that he knew at the time of the grant of the visa that he was required to remain enrolled in a course at level 8 or higher of the AQF. A student who obtains a student visa is expected to know and be aware of his visa conditions and comply with those conditions. Ignorance of the visa conditions is no excuse to a breach of the visa.

16. The applicant claimed that while studying the Diploma of Engineering (Standard), his grandmother’s medical condition commenced deteriorating in June 2017 and she became quite sick in August 2017. As he was close to her, it disturbed him and he asked his family if he could return home to visit his grandmother. He claims that her condition was so severe that he could not concentrate on his studies. The medical reports provided to the Tribunal confirm that the applicant’s grandmother had sustained a Subarachnoid Haemorrhage with Somatoform Disorder. The effect of that condition was that she complained of lethargy and generalised body weakness for a day. She was admitted into hospital on 22 September 2017 and discharged from hospital on 1 October 2017, after which she recovered from her condition. The Tribunal accepts that the applicant may have been concerned about his grandmother’s condition especially once she was hospitalised in September 2017. However there was no medical evidence submitted or evidence given that the applicant became so distressed about her condition that he could not study or had to defer his studies.

17. In any event the applicant studied first semester in the Diploma of Engineering course and he sat exams in or around June 2017 and he failed three subjects. He gave evidence that he scored zero in one subject. Such a result is indicative of a student not applying himself to his studies during the course at all. He was responsible for his results. Despite evidence that he could not focus on his studies, the Tribunal is not satisfied that his academic results were as a result of his concern of his grandmother’s condition at that time. The applicant’s grandmother’s condition had not deteriorated and did not become severe until August 2017, and when she was hospitalised September 2017. He was no longer enrolled in that course when that occurred.

18. The applicant claims he was enrolled in second semester and commenced studying in July 2017 and had paid $800 towards second semester but his enrolment was cancelled for non payment of fees. He claimed that his family was unable to pay his tuition fees because they were paying medical expenses for his grandmother.

19. He claimed that he made part payment of his fees in second semester paying $800 but he did not pay the balance of his tuition fees for second semester and his enrolment in the Diploma of Engineering course was cancelled, which then led to the cancellation of his enrolment in the Bachelor of Engineering (Honours). The Decision Record confirms that the applicant’s enrolment in the Bachelor of Engineering (Honours) was cancelled on 8 August 2017.The applicant does not dispute that the enrolment was cancelled at that time.

20. The applicant then enrolled in a Diploma of Information Technology at Strathfield College; the COE for this was created on 10 August 2017 and he was to undertake studies in the Diploma from 21 August 2017 to 17 August 2018. The course was at level 5 of the AQF. The applicant gave evidence that he was aware that he had enrolled in a lower level course but he had done so to enable him to make it easier to pass his courses. The applicant’s studies at Strathfield College were unsuccessful. He gave evidence that he had passed four to five units but failed some units. He claims that while studying he became involved with a group of students who he was studying with at Strathfield College who were gamblers and encouraged him to gamble. He got involved in gambling heavily on the poker machines, which detrimentally impacted upon his studies. He claimed that he had a gambling addition which took over his life and he lied to his parents about that addiction and his studies.

21. The applicant claims that at that time he was aware that he was in breach of his visa by only studying a diploma course and he made numerous applications to get enrolled in a bachelor’s degree which were unsuccessful.

22. The applicant gave evidence that he decided to break the addiction and enrolled in a Diploma of Accounting at Sydney Metro College; the COE for this was created on 18 October 2018 and he was to undertake studies in the Diploma from 15 October 2018 to 13 October 2019. The course was at level 5 of the AQF. While the applicant gave evidence that he enrolled at Sydney Metro College to break the gambling addiction, the Tribunal notes that the applicant’s enrolment in the COE at Strathfield College had expired by the time he had changed his course.

23. The applicant claims that his studies at Sydney Metro College were unsuccessful. He claims that his enrolment at the College was cancelled due to low attendance at the college. The Decision Record confirms that the cancellation of the enrolment occurred on 29 September 2019. The applicant claims that his attendance at classes was poor because he developed an addiction to playing a computer game, Player Unknown’s Battlegrounds, which resulted in him spending money on gaming credits and playing games during the night and not attending class.

24. The applicant gave evidence that his failure in those courses was a wake up call and he was wasting precious time and opportunities and deceiving his parents in relation to his studies.

25. On 14 October 2019, the applicant received a Notice of Intention to Consider Cancellation (NOICC) of his visa.

26. On 30 October 2019, the applicant enrolled in a Diploma of Information Technology at Wentworth Institute; the COE for this was created on 30 October 2019 and he was to undertake studies in the Diploma from 28 October 2019 to 25 October 2020. The course is at level 5 of the AQF.

27. On 31 October 2019, the applicant enrolled in a Bachelor of Interactive Media at Wentworth Institute; the COE for this was created on 31 October 2019 and he was to undertake studies in the Bachelor’s course from 16 November 2020 to 11 November 2022. The course is at level 7 of the AQF. The enrolments in those courses were not at level 8 of the AQF or higher as required by subclause (2)(b) of condition 8202 of the visa.

28. It appears that the enrolments in those two courses coincided with the applicant receiving the NOICC.

29. The Tribunal notes if the applicant completes the Diploma and Bachelor’s degree, he will have remained in Australia for some five years and nine months, which is a long period of time.

30. On 5 November 2019, as stated above, the applicant provided to the Department a response submission together with supporting documents, which included the COEs for the Diploma of Information Technology and Bachelor of Interactive Media at Wentworth Institute, medical reports for his grandmother and a relationship certificate.

31. The applicant gave evidence that he intends studying the Diploma of Information Technology at Wentworth Institute and the Bachelor of Interactive Media.

32. As at the date of the hearing, the applicant is not enrolled in a course at level 8 of the AQF or higher, and if he continues to study the Diploma of Information Technology and Bachelor of Interactive Media as contained in the COE, then the outcome would be that the applicant would remain in breach of his visa even if the cancellation of the visa was set aside, as he would be enrolled in a course that was not at the same or a higher level than a level 8 course, and it is a breach of condition 8202(2)(b) of the visa.

33. The applicant, by his representative, argued that the applicant could address that issue by applying for a new visa or enrolling in a graduate diploma course which is at level 8 of the AQF.  The applicant did not provide supporting evidence of any graduate diploma course that he could successfully enrol in Australia if the cancellation of the visa was set aside. He did not present any letter of offer or letter from a tertiary institution that it would be prepared to consider an application for enrolment by the applicant.

34. On 28 October 2019, the applicant provided a detailed explanation letter of his circumstances to the Department.

35. The applicant gave evidence that he was aware that he was in breach of his visa by not being enrolled in a course at level 8 of the AQF or higher.

36. The applicant conceded in evidence that he was not enrolled in a course at level 8 of the AQF or higher from 9 August 2017 to the cancellation of the visa on 20 November 2019, being a period of more than 27 months, and he was enrolled in lower level courses for a very long period of that time. By reason of not being enrolled in a level 8 course of the AQF or higher for that period of time, he did not meet condition 8202(2)(b) of his visa. As the applicant was not enrolled in a course at levels 9 or 10 of the AQF, the exemption at condition 8202(3) of the visa does not apply to the applicant and he is required to be enrolled in a course at level 8 of the AQF or higher.

37. On the evidence before the Tribunal, the applicant did not maintain enrolment in a registered course that, once completed, will provide a qualification from the AQF that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted, for the period from 9 August 2017 to 20 November 2019. Accordingly, the applicant has not complied with condition 8202(2) of his visa. As this was a condition that was attached to his visa, the applicant therefore breached a condition of his visa and the visa is liable to cancellation under s.116(1)(b) of the Act.

    Consideration of the discretion to cancel the visa

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

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

39. The applicant gave evidence that he came to Australia to study and undertake the courses as discussed above.

40. As discussed above, the applicant has generally been continuously enrolled in courses and studied since his arrival in Australia.

41. There is no doubt he came to Australia for the purpose of studying in Australia.

42. As discussed above, since coming to Australia he has enrolled in but unsuccessfully studied the following courses:

    a.Diploma of Engineering (Standard) at Insearch Limited;

    b.Diploma of Information Technology at Strathfield College; and

    c.Diploma of Accounting at Sydney Metro College.

43. The applicant’s poor academic results are indicative of a student who has not applied himself and does not intend to genuinely study. The reasons given for his failed studies all result from the applicant’s own addictions and failure to apply himself, and reveal an intention not to genuinely study here in Australia.

44. The applicant intends to continue studying in Australia in the future. The applicant has an enrolment for the Diploma of Information Technology and Bachelor of Interactive Media at Wentworth Institute. As at the hearing he had only completed one unit of the Diploma of Information Technology at Wentworth Institute.

45. The applicant gave evidence that he is very keen to return home with a bachelor’s degree, as it will provide him with an opportunity to work in the Information Technology field back home.

46. Having regard to the applicant’s evidence and his conduct during his stay in Australia, in that he has continued to study during the time he has been in Australia, the Tribunal accepts that the applicant has travelled to Australia for the purpose of studying and he intends to study in the future, but his academic results and lack of application in his studies reveal he has not stayed here for the purpose of undertaking his studies.

47. Further, the applicant was not enrolled in the appropriate level of course for a period of more than 27 months, but the Tribunal accepts that the applicant has changed courses because of his failed studies in the Diploma of Information Technology at Insearch Limited. The applicant was generally continuously enrolled in a registered course, as set out above, although not at the appropriate level for a very long period of time of more than 27 months. For these reasons, the Tribunal gives these matters marginal weight towards the visa being cancelled.

    The extent of compliance with visa conditions

48. The applicant was not enrolled at the appropriate level course for the period from 9 August 2017 to 20 November 2019. Therefore, the applicant has not complied with condition 8202(2) for a very long period of time. The non-compliance with condition 8202(2) for such a long period of time may weigh towards cancelling the visa unless the Tribunal accepts his reasons for non-enrolment or finds he was not responsible for the reason of non-enrolment.

49. As discussed above, the applicant’s non-compliance with the visa condition relates to his failed studies in the Diploma of Engineering together with non payment of tuition fees, which led to the cancellation of his enrolment in the Bachelor of Engineering (Honours) and his inability to enrol in another course at the same level or higher.

1. He claimed that he failed his studies because his grandmother was unwell and he could not concentrate on his studies. He also claimed his family was unable to pay his tuition fees for the Diploma of Engineering because they were paying medical expenses for his grandmother. Such claims are unconvincing.

2. As discussed above, the applicant’s grandmother’s condition deteriorated after he failed his exams in or about June 2017 and, on the evidence before the Tribunal, it appears that the applicant failed his studies due to a lack of application. The applicant claims that his family could not afford his tuition fees because they were meeting his grandmother’s medical expenses, but those claims are inconsistent with the evidence that:

   a.The applicant’s grandmother would have incurred the majority of her medical expenses once hospitalised in September 2017 and October 2017, by which time he had already lost his enrolment in the Diploma of Engineering in August 2017; and

   b.The applicant had sufficient funds in August 2017 to meet the tuition fees for the Diploma of Information Technology at Strathfield College, which meant he should have had sufficient funds to meet the tuition expenses for the Diploma of Engineering.

3. Whilst the Tribunal accepts that the applicant may have needed to change courses due to his failed studies, the applicant was obliged to meet his visa conditions and it was his responsibility to maintain enrolment in the appropriate level of course. If he could not maintain that level of enrolment, it was open to him to apply to the Department for a new visa.

4. The applicant in evidence confirmed that he knew that he was in breach of his visa.

5. The Tribunal understands the applicant’s reasons for not being compliant with the visa, where the applicant was aware that he would be in breach of his visa by not enrolling in a course at level 8 of the AQF or higher. The applicant gave evidence that he made enquiries to enrol in a bachelor’s course, but those enquires failed to achieve an enrolment.

6. The Tribunal finds that apart from the matters before this Tribunal, there are no other matters raised about the applicant not being compliant with his visa

7. Visa holders who hold a student visa are aware that one of the main conditions of the visa is that they must be enrolled in a registered course of study at the appropriate level and that they are responsible for ensuring they are enrolled in a registered course of study at that level. The applicant was required to be enrolled in a course at level 8 of the AQF or higher, and if he could not secure such an enrolment, he should have applied to the Department for a new visa.

8. The Tribunal finds that the reasons for not being enrolled in a course at the appropriate level of the AQF were the responsibility of the applicant.

9. Having regard to the very long period of the breach, the reasons for losing the enrolment in the Bachelor of Engineering (Honours) course, the fact that the applicant could have applied for a new visa, and that the applicant was responsible for not being enrolled at the appropriate course level, the Tribunal gives these matters substantial weight towards the visa being cancelled.

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

10. The Tribunal asked the applicant if he or other members of his family would suffer hardship if the visa was cancelled.

11. The applicant gave evidence that if his visa was cancelled it would cause him and his family a substantial degree of hardship as:

    a.It would be a blow to his family who have funded his education and he has not achieved any qualifications;

    b.It would be a waste of his three years in Australia and it would be difficult to return and gain employment;

    c.He will lose the trust of his family; and

    d.He would need to return home and explore his options to see if he could study in Nepal (this would be difficult to do at a good university in Nepal due to the gap of three years in his studies) or explore the possibility of seeking to return to Australia in three years to complete the courses he wishes to study.

12. The Tribunal notes that the applicant has not completed any courses and he will return home to Nepal empty-handed if the visa is cancelled. Further, the Tribunal accepts that there will be some financial hardship caused to the applicant and his family if the visa is cancelled, in the cost of tuition fees that have been paid for the last three years, but they are predominantly lost whether he undertakes any further study in Australia or not.  

13. The Tribunal also finds that there is nothing preventing the applicant studying back at home.

14. In any event, the Tribunal finds that these matters may be the consequences of the visa cancellation, but they are not matters that would on their own constitute an overwhelming degree of hardship sufficient to weigh against cancelling the visa.

15. The Tribunal considers that the above matters give marginal weight towards the visa not being cancelled.

    Circumstances in which ground of cancellation arose

16. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control.

17. The applicant gave evidence as to the circumstances that led to the cancellation of the visa as set out above.

18. Ultimately, the responsibility regarding enrolment rests with the student.  

19. The applicant knew and was aware that by not being enrolled in a registered course of study at the appropriate level he would be in breach of condition 8202 and that his visa may be cancelled. However the applicant was unable to enrol in a course at level 8 of the AQF or higher.

20. The primary responsibility of the applicant under the visa is to be enrolled and undertake a registered course at a level appropriate to his visa. The applicant was not enrolled in a registered course at an appropriate level for a period of more than 27 months, which is a very long period of time to be in breach of the visa.

21. The Tribunal has considered the applicant’s explanations for why he was not enrolled in a registered course at a level appropriate to his visa for such a very long period of time and therefore in breach of condition 8202(2). The Tribunal does not accept those circumstances were beyond his control, or circumstances that provided a reasonable explanation for not being enrolled at the appropriate level of course for such a long period of time. The Tribunal gives this matter substantial weight towards the visa being cancelled.

    Past and present behaviour of the visa holder towards the Department

22. According to the Decision Record, the applicant responded to the NOICC. Further, there was no information before the Department indicating any specific matters of relevance regarding the applicant’s behaviour towards the Department. The Tribunal gives this factor marginal weight towards the visa not being cancelled.

    Whether there would be consequential cancellations under s.140

23. As the cancellation of the visa does not affect the visa of any other person, this matter is not relevant in this application and the Tribunal gives this no weight towards the visa not being cancelled.

    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

24. If the Tribunal decides to affirm the decision to cancel the visa on these grounds, then the applicant will become an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act if he does not voluntarily depart Australia. Further, pursuant to s.48 of the Act, the applicant will have limited options to apply for further visas in Australia, so he would need to depart Australia and apply from overseas for most types of further visa.

25. Further, if the Tribunal decides to affirm the decision to cancel the Student (Temporary) (Class TU) visa on these grounds, then the cancellation will come within the identified risk factors to make the applicant meet public interest criterion 4013, so if the applicant decides to apply for a new visa from overseas if he has to depart Australia, then that application may not be approved within the next three years.

26. However, these are the intended consequences of the legislation when a visa is cancelled on these grounds.

27. The applicant gave evidence that if the visa remained cancelled he would return to Nepal and undertake his studies there, and therefore there is no indication that he would become unlawful or be subject to detention.

28. Accordingly, the Tribunal gives this factor marginal weight towards the visa not being cancelled.

    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

29. This matter does not appear relevant in this application as the applicant gave evidence that if the visa remained cancelled he would return to Nepal, and he did not give any reasons as to why he could not return to Nepal, and he has not made any claims that relate to this consideration. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

    If it’s a permanent visa, whether the former visa holder has strong family, business or other ties in Australia

30. This matter is not relevant in this application as the cancelled visa is a temporary visa and the Tribunal gives this factor no weight towards the visa not being cancelled.

    Any other relevant matters

31. The Tribunal considers that it is a relevant matter as to whether the applicant is able to obtain enrolment in a registered course at an appropriate level to his visa. If the applicant is unable to obtain enrolment in a course that is at an appropriate level to his visa it will weigh towards his visa being cancelled, as there would be little utility to setting aside the cancellation of the visa if the applicant would remain in breach of his visa condition.

32. The courses that the applicant is currently enrolled are the Diploma of Information Technology, which is a course at level 5 of the AQF, and the Bachelor of Interactive Media, which is a course at level 7 of the AQF.

33. If the applicant undertakes those courses, without any other enrolment, he will not be compliant with the visa condition of maintaining an enrolment at level 8 of the AQF or higher.

34. The applicant submitted that he would endeavour to seek an enrolment in a graduate diploma course in the future, which is compliant with the visa conditions, but there was no supporting evidence by way of letter of offer or evidence from the applicant that a university was prepared to offer him a position subject to cancellation of the visa being set aside.

35. In such circumstances, the Tribunal finds that on the evidence before it, the applicant will study the Diploma of Information Technology and not be enrolled in a graduate diploma course in the near future and the applicant will be unable to obtain the necessary enrolment to be compliant with the visa for a number of months.

36. Accordingly, the Tribunal gives this factor no weight towards the visa not being cancelled.

    Conclusion

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

    DECISION

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

    Michael Biviano
    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.