Uprety (Migration)

Uprety (Migration) [2024] AATA 2960 (6 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Sushil Uprety
REPRESENTATIVE:  Mr Narayan Koirala (MARN: 1568518)
CASE NUMBER:  2217170
HOME AFFAIRS REFERENCE(S):          BCC2022/2239215
MEMBER:Gabrielle Cullen
DATE:6 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 06 August 2024 at 4:31pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – enrolment cancelled – applicant changed to vocational courses – no release letter from previous college – adverse study history – mental health issues – applicant maintained employment – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 48, 116, 140, 359
Migration Regulations 1994, Schedule 4 Public Interest Criterion 4013; Schedule 8; Condition 8202; r 2.12
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 15 November 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 applicant attached the Department’s decision when applying to the Tribunal for review. This indicates that on 16 August 2022 the Department invited the applicant to comment on their intention to consider cancellation of his subclass 500 student visa, granted on 28 January 2020[1], on the basis that he had not been enrolled in a course of study since 17 February 2020. The applicant responded to the Notification of Intention to Consider Cancelling the Visa (NOICC).
[1] This visa was granted on 28 January 2020 and valid to 25 November 2022 until it was cancelled by the Department on 15 November 2022.
The applicant appeared before the Tribunal via video on 25 July 2024 to give evidence and present arguments. His representative attended the hearing.
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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
The applicant was granted a subclass 500 Student visa on 28 January 2020 valid to 15 November 2022. That visa was subject to condition 8202.
Did the applicant comply with condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a registered course, or in limited cases, a full time course of study or training: 8202(2);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).
The applicant was notified of the intention to consider cancellation (NOICC) of his visa on 16 August 2022. The Tribunal is satisfied that the NOICC was validly issued. The applicant responded to the NOICC and did not dispute that he had not been enrolled in a course of study from 17 February 2020.
He provided reasons as to why he had not been enrolled in a response to the NOICC which are considered below.
The delegate found the applicant had not been enrolled in a registered course of study from 17 February 2020 to the date of its decision on 15 November 2022.
As raised with the applicant at hearing via s.359AA the applicant’s Provider Registration and International Student Management System (PRISMS) records contain information that the applicant had not been enrolled in a registered course of study when his enrolment in the packaged course of the Certificate III in Commercial Cookery leading to an Advanced Diploma of Hospitality Management was cancelled for non-payment of fees.
The applicant confirmed in oral evidence to the Tribunal that he was not enrolled in a course of study from 17 February 2020 until 15 November 2022. The applicant did not dispute that he had not complied with condition 8202(2) of his visa.
Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 17 February 2020 to 15 November 2022 while the holder of a subclass 500 student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).
The Tribunal is therefore satisfied that the grounds for cancellation in s.116(2)(b) exist.
Consideration of the discretion to cancel the visa
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’.
Background
The applicant is a 25-year-old male citizen of Nepal who is single[2]. He has no children.
[2] His evidence at hearing was that he was married but he is now divorced.
He first arrived in Australia on a subclass 573 Student Visa on 1 February 2016 valid to 30 August 2019 to study a packaged Information Technology (IT) course leading to a Bachelor of IT[3]. At hearing he indicated that he successfully completed the Certificate IV and Diploma of IT. He said he then asked for a releases letter and started studying the cookery courses as he did not have the skills in IT. He was granted a further student visa on 28 January 2020 to study the Certificate III in Commercial Cookery leading to the Advanced Diploma of Hospitality Management with enrolment being cancelled for non-payment of fees on 17 February 2020.
[3] As confirmed at hearing.
In his response to the NOICC he provided the following reasons for his lack of enrolment in the relevant period. He claims he was very excited to start studying his cookery and hospitality courses as he had not been doing well with information technology, was not good with computers and was more interested in cookery as he had been working in that area. He claims since he was struggling with his study in IT he was anxious and depressed and not his best self. He claims because of what he was going through his relatives in Brisbane advised him to come and visit and he decided to travel there for some time to make his mind clear. He claims while in Brisbane his COEs in cookery and hospitality were cancelled. He claims this was a huge shock for him and very disappointing news. He claims while this was going on Covid happened and he decided to stay in Brisbane, to stay safe and not to travel. He claims as his relatives were there and he was already going through a hard time he thought it would be best for him to live with his relatives. He claims he still wanted to study so he asked the provider for a release letter so he could study the same course in Brisbane but no matter how much he explained the situation they would not give him a release letter. He claims he has applied for new courses in other colleges and has received numerous offer letters but was not able to receive a COE because they demanded a release letter from his previous education provider and his education provider would not give one to him. He claims after that he has been living in Brisbane trying to obtain admission to a college. He requests one last chance as his skills and experiences will not matter without a degree. He claims before returning to Nepal he wants to have an Australian degree that will certify his skills and experience and he will learn a lot of new things from that degree.
In his prehearing submission he provided a statutory declaration from his uncle dated 19 July 2024. His uncles notes that in February 2020 he invited the applicant to live with them for a couple of weeks in Brisbane hoping that being closer to his family would aid in his recovery. He claims despite the challenges of maintaining regular contact due to distance and the applicant’s mental health struggles he persisted in staying in touch through multiple phone calls which ultimately led to the applicant’s relocation to Brisbane. He notes that since his move the applicant has re-integrated into his family and social circle participating in family events and forming a special bond with his pet Labrador. He submits that over time he has observed a positive transformation in his overall well-being, demeanour and functioning.
His representative made submissions dated 18 July 2024 that the applicant failed all practical exams while studying the Certificate III in Commercial Cookery due to the mental health issues he was going through. He claims he was twice interrogated by Brenda from Evolution (the education provider) where he was studying the course, once immediately following the result and the second time for skipping classes. He claims the applicant responded both times by saying it was because of mental health problems and that Brenda responded that he had failed the semester and would need to repeat it.
He provided a letter of offer to study a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management from 13 July 2020 from Cambridge Academy of English and one to start similar courses on 21 February 2020 from American College.
He provided evidence of travelling to Brisbane via the XPT on 7 February 2020.
He provided evidence of email correspondence sent to the applicant by the education provider, Evolution on 17 February 2020 noting his COE had been cancelled, that a financial intention to report letter was sent to him on 17 January 2020 and he was given 28 days to appeal in writing against the decision as to whether there are reasons why he should not be reported but he did not respond. The letter noted he was advised previously he had 28 days to enrol in an alternative course, but he had not responded.
He provided a copy of an email he sent in response to the above to his education provider on 23 March 2020 in which he states he was once enrolled at their College and at that time he was facing many difficulties in his life as he was jobless, hopeless, had no relatives in Sydney and alone. He claims he was down and unable to focus on his studies, unable to pay the rent and his mental stress was increasing day by day. In the email he notes he tried to explain all this to Brenda while he was studying and tried to maintain everything but he could not even look after himself and his COE was cancelled on 17 February 2020 for non-payment of fees. He claims he was so embarrassed he left Sydney and moved to Brisbane and started living with his relatives in Brisbane. He claims that he wants to study there and everything is perfect there including his accommodation, job and relatives. He reiterated that he cannot receive any COE due to the cancellation of his COE. He claims he is trying to enrol in Queensford College but they are asking for a release letter from his previous college. He asked for a release letter so he could start studying commercial cookery.
He provided evidence indicating completion of courses in Nepal.
At hearing when explaining the reasons for the non-enrolment and cancellation of his Certificate III in Cookery he said around the time of his first visa expiring he was struggling with his mental health, as he was worried about his future and his ability in IT. He said since he had been working in the hospitality sector he decided in September 2019 to begin studying the Certificate III in Commercial Cookery. He claims he continued to struggle with his mental health as he was all alone in Sydney, had no one to talk to, then he skipped some classes and failed the exams he claims he contacted Brenda who said as he failed his exams he would have to repeat the semester again and would have to also pay for it again. He claims he was totally down, struggling daily and was unable to express himself. At that time he contacted his uncle in Brisbane and talked to him about his mental health issues and he said that was around the end of January 2020. He said his uncle advised him to go to Brisbane and he said he told his uncle about his education problems and told him about his mental health issues. He said on 7 February 2020 he travelled to Brisbane and stayed a couple of weeks with his uncle. He said he was so down at that time he missed the email where the education provider told him that his visa may be cancelled and his right to appeal. The Tribunal questioned what he thought would happen if he failed and had not paid the fees and he said his mental health was so bad, he did not see the email and his enrolment was cancelled on 17 February 2020. He said even though it was cancelled for non-payment of fees he had the money. The Tribunal raised with him that it may expect that a person in Australia to study would have reached out to the college and advised them of his mental health issues and his ability to achieve course progress and pay fees. It noted this was particularly so as they had advised him in their email to him on 17 January 2020 that he could appeal. He said he was not checking his emails at that time due to his mental health. The Tribunal questioned this as it seemed odd he was able to buy a ticket and travel to Brisbane but not able to check his emails.
The applicant said following his enrolment being cancelled he tried to enrol in many colleges but as he was unable to obtain a release letter they would not enrol him. As to who he approached he referred to the two examples given and when asked if he attempted to enrol in any other colleges, he said he does not remember but he said he did not try to enrol after 2020 until his visa was cancelled.
He referred to the difficulties from March 2020 for about six months because of the effects of Covid.
He said he never saw a medical physician or sought advice due to his mental health issues. He said around March 2020 following his move to Brisbane his mental health issues receded. He repeated that the mental health effects became better once he moved to Brisbane.
He said he did not contact the Department or seek legal advice in the 2 ½ years he was not enrolled.
As to where he worked he said he has been working at a burger restaurant since September 2020. He said he worked at Hungary Jacks and McDonald’s in 2018 but did not work in 2019/2020 due to his mental health.
In contrast to the applicant’s evidence at hearing, and not raised previously his representative said that the applicant was in contact with his Office around July 2022 seeking enrolment. He said he was not his representative at the time but his education team tried to arrange enrolment for him but could not as he had no release letter. When the Tribunal asked why other applicants before it have been able to enrol although their COE had been cancelled; he said the situation for the applicant is different because he did not complete 6 months of his primary course. The Tribunal noted he had completed a Diploma of IT and noted the applicant’s evidence that eh ahd not sought assistance.
His representative referred to his mental health being the cause of the problem to March 2020, then Covid to around September 2020 and then being unable to enrol and that he was trapped.
The Tribunal also asked him questions with regard to the factors below and the evidence he provided where relevant is outlined below.
The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia
The purpose of the first visa grant was for the applicant to travel and stay in Australia for the purposes of study. He first arrived in Australia on a subclass 573 Student Visa on 1 February 2016 valid to 30 August 2019 to study a packaged Information Technology course leading to a Bachelor of IT[4]. At hearing he indicated that he successfully completed the Certificate IV and Diploma of IT. He said he then asked for a release letter and started studying the cookery courses. While he has provided no completion certificates as to finishing the Certificate IV and Diploma of IT, PRISMS records them as finished. The Tribunal is prepared to accept he successfully completed these courses. The Tribunal accepts that as he successfully completed the Certificate IV and Diploma of IT his purpose while holding his first Student visa, the subclass 573 visa, from 2016 to 2019 was to travel to and stay in Australia for study.
[4] As confirmed at hearing.
He was granted a further student visa on 28 January 2020 to study a packaged course beginning with a Certificate III in Commercial Cookery leading to the Advanced Diploma of Hospitality Management with enrolment being cancelled for non-payment of fees on 17 February 2020. While he has repeatedly indicated his purpose was to study while holding this visa, of concern is that his evidence indicates he did not attend classes, failed his exams in the first semester of the Certificate III in Commercial Cookery and his enrolment was cancelled for non-payment of fees, even though he said he had the money to pay the fees. He was then not enrolled in a course of study until his visa was cancelled on 15 November 2022. A no study condition has been placed on his bridging visa since that time.
As to the reasons for his poor study record leading to the cancellation of enrolment in the Certificate III in Commercial Cookery for non-payment of fees, he has repeatedly referred to his poor mental health and the effects this had on him as outlined above. He said he was jobless, homeless, with no relatives in Sydney and lonely. He said however, he did have the money to pay the fees. He has referred to the Covid lockdown and as his COE was cancelled, he was unable to obtain a release letter which rendered him unable to obtain enrolment at any other College to study.
The evidence indicates that the applicant was advised by Brenda from the education provider that he had to repeat the semester and pay for the fees on two occasions after he failed the exams. The Tribunal views this as appropriate when a student has failed the semester.
He was also advised in writing on 17 January 2020 of his non-financial status and that he had been given 28 days to appeal in writing against the decision if there were reasons he should not be reported. The Tribunal views as of concern why he did not appeal and is of the view a student in Australia to study would appeal. When asked why he did not appeal or pay the fees, when he said he had the money; he said he did not check his emails and referred to his poor mental health due to isolation, loneliness and other factors at the time as the reason for his inaction.
The Tribunal is of the view that if he was in Australia to study and his mental health was to such an extent, due to loneliness and caused by all the factors he claims, that he was not able to achieve course progress, attend class nor check emails he would have sought professional help. The evidence at hearing was that he did not. The Tribunal is therefore of the view that the lack of any evidence that he sought medical help, undermines his claim as to why he did not check his emails and appeal, why he did not pay the fees when he had the money, which lead to his enrolment being cancelled. It also undermines his claim that the reason he did not attend and achieve course progress, which led to his failure in the first semester of the course was due to his mental health issues for the reasons she claims.

The Tribunal also does not accept that he was able to organise and travel to Brisbane on the XPT yet was not checking his emails. It also notes he had been warned by Brenda and would expect a genuine student in Australia to study would be checking his emails, especially after he had failed.
In making this finding the Tribunal has considered the statutory declaration of his uncle; while it accepts the applicant was not himself; it does not consider his mental health was to the extent he claims, leading to his lack of course progress in 2019/20, rendering him unable to check his emails and appeal for the reasons outlined above. It does not accept his mental health was the reason that led to the cancellation of his COE and his non-enrolment.
The applicant has then referred to moving to Brisbane and wanting to study but being unable to obtain enrolment as he had not received a release letter from the provider where he studied the Certificate III in Commercial Cookery following his enrolment being cancelled. He attached two offers of where he wished to study from 2020, more than two years before his visa was cancelled. The Tribunal views as undermining his claim that his purpose of being in Australia to study is that he only sought enrolment in 2020 and said after that time he did not. Further, at hearing he said he did not seek assistance from the department or legal assistance or assistance from an education agent, to assist him to enrol, at any time in his period of non-enrolment. The Tribunal is of the view if the applicant’s purpose was to study he would have sought this assistance, even if he was scared of the Department. He has not provided a reasonable explanation why he would remain on a visa not studying and not seek to resolve this issue seeking assistance from an expert, if his purpose of being in Australia was to study. In contrast to the applicant’s evidence his representative indicated that the applicant had approached his office seeking to study but enrolment could not be organised due to the release letter issue. He said the applicant had forgotten this. The Tribunal places more weight on the applicant’s evidence that he did not seek assistance and not on the evidence of the representative. It is of the view if the applicant sought help in the period of non-enrolment to resolve the issues he would have recalled this. While the applicant said he was scared to seek help from the Department, it has difficulty accepting if his purpose was being in Australia to study that he would remain on the visa for more than two years not studying due to fear. Therefore while it accepts the lack of a release letter from his education provider may have impacted on his ability to enrol, it does not accept due to his lack of effort to resolve the issue, that by that time his purpose of being in Australia was to study.
While at hearing he indicated his mental health improved by March 2020, there is other evidence that he did not seek further enrolment beyond due to his mental health issues. However of concern as to this being the reason he could not enrol in this period due to mental health issues was his evidence at hearing that he worked from September 2020 throughout the period of non-enrolment, including to November 2022. The Tribunal is of the view that if he were able to work in this non-enrolment period he would be able to enrol and study, if his purpose of being in Australia was to study. This undermines that his mental health issues affected his ability to study and undermines his claim his purpose was to study in this period.
It also raised with him if his purpose is to study for value to his future; why if he could not enrol in a registered course he did not try and enrol in a non-registered course to obtain the skills for his future. He said he did not look into that. The Tribunal is of the view if he wanted to study to enhance on the skills he already has from working in the area to become a restaurant manager on return; if he could not study in a registered course as he could not obtain a release letter; he would have obtained the education in non-registered courses or attempted to do so. This undermines his claim he was in Australia studying for his future.
The Tribunal accepts that COVID may have impacted his ability to study in person, and accepts during the first lockdown in 2020 it may have affected his ability to enrol and study for a short period; but notes that study moved online quickly. In any event, for the reasons above the Tribunal does not accept Covid was the reason for his lack of enrolment rather it has found that at that time his purpose was not to study.
It therefore does not accept that his purpose to stay in Australia was to study during the period of non-enrolment.
As to why there is a compelling need for him to stay in Australia, he said he has been in Australia for nearly 8 years and he only has a Diploma of IT and he sees his future in cookery and needs to obtain the skills for his future. When the Tribunal raised with him that there are courses in Nepal he could study he said they are not as good as in Australia, would not be as beneficial to his future career and explained why. He said he has skills in the kitchen but not the education in that area. He said he sees his future in cookery than any other area. While the Tribunal accepts that Australian cookery courses are far better; and would be far more beneficial to a future cookery career; it does not accept this represents a compelling reason to remain in Australia.
The Tribunal gives this factor neutral weight.
The extent of compliance with visa conditions
The applicant did not comply with condition 8202(2) as he was not enrolled in a registered course of study from 17 February 2020 to 15 November 2022. The Tribunal considers this period of 2 years and 9 months of non-enrolment to be of significant concern, and the Tribunal is mindful that it is expected that all visa holders adhere to the conditions of their visa. The Tribunal has considered above the reasons which he claims led to this non-compliance but as outlined above it does not accept the reasons he has put forward led to the non-compliance. Rather it has found his purpose was not to study in the period of non-enrolment.
The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on her previous work and holiday visas.
The Tribunal gives this factor significant weight in favour of exercising its discretion to cancel the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
At hearing the applicant referred to being unable to complete his studies in Australia, achieving the cookery and hospitality courses. He said this would affect his future. He said at first he studied IT, and finished his Diploma of IT, but he does not have any skills even though he passed. He said he has been in Australia for 7 years and wants to complete the cookery course.
He said not studying would mean he is not in as good a position for his career, such as being a restaurant manager. It notes his evidence that he can study these courses on return to Nepal, albeit it accepts that the courses in Nepal are not as beneficial. He requests one last chance as his skills and experiences will not matter without a degree.
The Tribunal give this factor low weight in favour of its discretion not to cancel the visa.
Circumstances in which the ground of cancellation arose
The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as he was not enrolled in a course of study between 17 February 2020 and 15 November 2022 when the Department cancelled his visa.
The applicant has advanced several matters that impacted on his ability to study as outlined above. He has referred to Covid, mental health issues for the reasons he claims and being unable then to enrol due to the lack of a release letter. For the reasons outlined above it does not accept that the matters he has put forward led to him suffering such mental health issues which rendered him being unable to achieve course progression, not being able to check his emails and appeal, which led to his enrolment being cancelled for non-payment of fees even though his evidence is he had the money to pay. As noted above, the Tribunal is of the view if he were so mentally unwell he could not study and enrol he would have sought medical assistance, which he did not. It has found above that his purpose was not to study. It has considered above the effects of Covid and being unable to enrol as he was not given a release letter, but has found above even if this was the case, his purpose in the non-enrolment period was not study. His lack of study was therefore not due to circumstances outside of his control, rather that it was not his purpose to study or enrol in the period of non-enrolment.
Therefore, the Tribunal gives this neutral weight.
Past and present behaviour of the visa holder toward the Department
There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past. The Tribunal gives this consideration neutral weight.
Whether there would be any consequential cancellations under s.140
The applicant claimed to be in Australia with no dependants. There is therefore no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor neutral weight.
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
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled, the applicant would continue to hold a bridging visa for a short period of time to allow her to finalise his affairs before returning to Nepal, subject to any appeal of the Tribunal decision. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s.48 of the Act and the applicant would have difficulties in obtaining any further visas in Australia. Under PIC 4013 he also may not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12. There is no restriction on which visa he can apply for once she leaves Australia. However, those are also intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral weight.
Whether Australia’s 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 no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. When asked by the Tribunal whether he had any fear of returning to Nepal the applicant said he did not.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matter
He repeated that the lack of enrolment arose because of his mental health issues and if it was today he would be studying in Australia. The Tribunal has considered above and has not accepted his mental health issues resulted in the cancellation of the COE and lack of enrolment from February 2020 to November 2022.
The Tribunal has considered the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are few aspects that are favourable to the applicant. It has considered the hardship on him and the reasons he claims led to the non-enrolment as well as his claims he is in Australia to study.
The Tribunal is mindful of the seriousness of breaching a visa condition and remaining in Australia on a student visa for a considerable period without studying or maintaining enrolment. Further, the cancellation of the visa is the intended consequence of breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.
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.
Gabrielle Cullen
Senior 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.

[2024] AATA 2960

6 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice