Yeung (Migration)

Yeung (Migration) [2022] AATA 3581 (1 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms So Fong Yeung
REPRESENTATIVE:  Mr Simon Shijie Feng (MARN: 0741653)
CASE NUMBER:  2006618
HOME AFFAIRS REFERENCE(S):          BCC2019/3388472 BCC20193388472 PNJ
MEMBER:Christine Kannis
DATE:1 October 2022
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 01 October 2022 at 8:31am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a higher education course – applicant changed to Vocational courses – applicant followed enrolment advice from her college – plans to complete studies – financial hardship – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 48, 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her visa as she did not maintain enrolment in a registered course at the same level, or higher 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams Audio on 20 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework (AQF) that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis that she 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: 8202(2)(b).
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2]Migration Regulations, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The applicant’s visa was granted on 10 April 2019 for study in the registered course of a Bachelor of Accounting at Crown Institute of Higher Education Pty Ltd. The highest CoE in relation to which the visa was granted would provide a Level 7 bachelor’s degree qualification from the AQF. The information from PRISMS shows that the applicant’s enrolment in that course was cancelled on 26 April 2019.
PRISMS records indicate that on 10 May 2019 the applicant enrolled in a Diploma of Accounting and a Certificate IV in Accounting. This enrolment is at Level 5 from the AQF.
On the evidence before the Tribunal, the applicant failed to maintain enrolment in a registered course that will provide a qualification from the AQF that is at the same level as, or at a higher level than, the course in relation to which the visa was granted from 29 April 2019 and the Tribunal finds that she breached condition8202(2)(b) of her visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1)(b) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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’, as set out below.
On 9 December 2019, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in Bachelor of Accounting and was therefore failing to comply with condition 8202(2)(b) of her visa.
The applicant did not respond to the NOICC.
In a letter to the Tribunal dated 27 March 2020, the applicant provided the following information:
·When she received the NOICC she forwarded it to her college who suggested to her agent that she should enrol in a Bachelor Course in accounting in another college as it had cancelled her CoE to study the Bachelor Course in Accounting in April 2019. The college said it forwarded the NOICC on 9 December 2019 to her agent however her agent checked his records and could not find it. The college produced evidence that it had been forwarded and she understands that sometimes an email might fail to reach the receiver due to technical problems. However, the agent said that even if he had received the email from the college on 9 December 2019, as the college asked the agent to find a university for her and have her enrolled in a bachelor course within 7 days, it was impossible for the agent to make it happen and the college should have advised him of their decision to cancel her CoE in a bachelor course when it was cancelled in May 2019.
·The biggest misunderstanding between her and her college took place when she received the visa cancellation decision. She forwarded it to the college and asked them to pass the decision to her agent, but the college forgot. As a result she missed the deadline to appeal to the AAT. Evidence proves she asked the college to pass the cancellation letter to her agent and the college agreed but did not do it.
·Her agent is trying to help her enrol in a new Bachelor course in Accounting in a new college because she wants to continue to study and complete her Bachelor degree in Australia and because she has invested so much money on her previous studies for many years in Australia.
·Her strong wish is to complete a Bachelor degree in Accounting in Australia. She has studied very hard in college and kept very good attendance record. She has spent a lot of money on her education in Australia and has already competed her English and Diploma courses in Australia.
Prior to the hearing the applicant provided documentation which included but was not limited to a statutory declaration, CoEs and a letter dated 3 March 2020 from Crown Institute of Business and Technology (Crown).
The statutory declaration dated 5 September 2022 was made by the applicant and included the following information:
·On 16 January 2015 she was granted a student visa and since then she has studied continuously at Crown in Sydney.
·The problem started in early 2019 when she finished her Diploma course in Leadership and Management and then the Advanced Diploma course in Leadership and Management at the end of 2018. She then applied to continue to study another course and she was supposed to continue to study a new Diploma course at the level under the Bachelor. However, recommended and instructed by Crown, she was then enrolled in the Bachelor course in Accounting in March 2019 in Crown Institute of Higher Education Pty Ltd. She was issued a new CoE for the Bachelor course to apply for her new student visa which was granted on 10 April 2019. However, despite her enrolment in the Bachelor course in Accounting, Crown arranged for her study in the Diploma course (starting with Certificate IV in Accounting and Bookkeeping -attach 1). Actually she liked to study the Diploma course because she tried to attend the Bachelor course and found it was too difficult for her. However Crown’s arrangement for her continued study in the Diploma course in Accounting (starting with Certificate IV in Accounting and Bookkeeping ) confused her as she had been instructed and permitted by Crown to study her Diploma course in Accounting (including the Certificate IV in Accounting and Bookkeeping) since she completed her previous Advanced Diploma course in Leadership and Management, which was Crown’s adjustment, decision and arrangement. The Department asked her to give an explanation, but she thinks Crown should give an explanation. She followed Crown’s recommendation and enrolled in the Bachelor course in Accounting, but later Crown cancelled her enrolment because she failed the entry test. Crown should have tested her first and then decided which course to enrol her into and they acted against common sense or the norms.
·She was more confused when Crown issued a letter recommending that she find another college or university because she was not good enough to be enrolled in the Bachelor course in Accounting at Crown. She asked her agent to find a college or university urgently however no institutes wanted to enrol her as she could not provide her English proficiency evidence. In the meantime Crown still permitted her to study her Diploma course in Accounting. The Tribunal notes that the applicant said this letter was issued in March 2000. The Tribunal assumes this is an error however a letter asking her agent to find a college or university urgently was not provided.
·Despite cancellation of her student visa on 21 January 2020, she remained enrolled in the Diploma Course and the Advanced Diploma course in Accounting at Crown without any unpermitted breaks and she is currently studying the Graduate Diploma course.
·The breach of 8202(2)(b) was the result of wrong recommendation by her school for enrolment in the wrong course which was beyond her control as she had to follow the school’s recommendation and directions and arrangement.
·Despite the wrong recommendation/arrangement and the Bachelor course cancellation by Crown and the visa cancellation and all the other problems, she has always kept studying since early 2018 and has not stopped except for permitted holidays. She wishes to study Diploma courses because they suit her, and she never wants to study a Bachelor course because she is not capable or interested in them. Her previous enrolment in a Bachelor course was her college’s irresponsible arrangement and was beyond her control. In reality she has always been studying her Diploma course at Crown instead of the Bachelor course.
·She has paid significant tuition fees and visa fees for the past eight years. She will successfully complete her final course next year. If her student visa is not continued then she will lose the opportunity to graduate next year and therefore would suffer a significant financial loss.
The CoEs provided by the applicant included the CoEs for courses undertaken prior to the grant of the Subclass 500 Student visa on 10 April 2019. Those courses included study in a Certificate IV course, two non- AQF Award English courses, two diploma courses and an advanced diploma course.
The applicant also provided the following CoEs:
·CoE for a Bachelor of Accounting created on 18 February 2019 for a course commencing on 25 March 2019 and ending on 31 December 2021. The course provider was Crown Institute of Higher Education.
·CoE for a Certificate IV in Accounting and Bookkeeping created on 10 May 2019 for a course commencing on 13 May 2019 and ending on 10 May 2020. The course provider Crown Institute of Business and Technology.
·CoE for a Certificate IV in Accounting and Bookkeeping created on 1 June 2020 for a course commencing on 13 January 2020 and ending on 10 May 2020. The course provider Crown Institute of Business and Technology.
·CoE for a Diploma of Accounting created on 10 May 2019 for a course commencing on 11 May 2020 and ending on 9 May 2021. The course provider was Crown Institute of Business and Technology.
·CoE for Advanced Diploma of Accounting created on 18 May 2021 for a course commencing on 5 July 2021 and ending on 5 June 2022. The course provider was Crown Institute of Business and Technology.
·CoE for a Graduate Diploma of Management (Learning) created on 19 July 2022 for a course commencing on 4 July 2022 and ending on 11 June 2023. The course provider was Crown Institute of Business and Technology. This CoE was created on 19 July 2022.
The letter dated 3 March 2020 from Crown Institute of Business and Technology certified that the applicant was currently enrolled in Certificate IV in Accounting and Bookkeeping and that she had successfully completed a Certificate IV, Diploma and Advanced Diploma of Leadership and Management courses. The letter stated :
She was offered our Bachelor of Entrepreneurship and Innovation course in March 2019, but she could not pass a diagnostic test that all our students in Bachelor Program need to complete. Therefore, her CoE for Bachelor course was cancelled and we recommend her to study lower AQF level courses.
Prior to the hearing the applicant also provided the following:
·Letter dated 20 February 2018 from Crown certifying that the applicant successfully completed a Certificate IV in Leadership and Management on 27 November 2016.
·The applicant’s Transcript of Academic Record dated 20 February 2018 for the Certificate IV in Leadership and Management.
·The applicant’s Certificate dated 20 February 2018 for the Certificate IV in Leadership and Management.
·Letter dated 20 February 2018 from Crown certifying that the applicant successfully completed a Diploma of Leadership and Management on 27 November 2017.
·The applicant’s Transcript of Academic Record dated 20 February 2018 for the Diploma of Leadership and Management.
·The applicant’s Certificate dated 20 February 2018 for the Diploma of Leadership and Management
·Letter dated 18 December 2018 from Crown certifying that the applicant successfully completed a Certificate III in Accounts Administration on 2 December 2018.
·The applicant’s Transcript of Academic Record dated 2 December 2018 for the Certificate III in Accounts Administration.
·The applicant’s Certificate dated 18 December 2018 for Certificate III in Accounts Administration.
Evidence at hearing
The Tribunal adopted the procedure in s.359AA of the Act to put to the applicant information from a copy of her enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from her PRISMS enrolment record, she was enrolled in the following courses of study:
a.In the period from 2015 to 2018 she was enrolled in Certificate and Diploma courses, four of which were cancelled and three of which were finished.
b.In 2015 she was enrolled in General English courses, three of which she finished, and one was cancelled.
c.She was enrolled in a Bachelor of Accounting, but this enrolment was cancelled on 26 April 2019 and the Variation Reason was Student left provider – transferred to course at another provider.
d.She was enrolled in a Certificate IV in Accounting and Bookkeeping in 2019 and 2020. The earlier enrolment was cancelled however she finished the course in May 2020.
e.She was enrolled in a Diploma of Accounting and Advanced Diploma of Accounting, both of which she finished in 2021 and 2022.
f.She is currently enrolled in a Graduate Diploma of Management (Learning). This CoE was created on 19 July 2022.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 29 April 2019 until 19 July 2022 , she did not maintain enrolment in a course at the same level as, or at a higher level than, the course in relation to which the visa was granted. The Tribunal explained that this information may be relevant to assessing whether the applicant breached the conditions of her Student visa by not maintaining the required enrolment. The Tribunal also explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering his purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to her PRISMS enrolment records. The applicant made no comment regarding the information from the PRISMS record.
The applicant told the Tribunal that she enrolled in the Bachelor of Accounting on the recommendation of her education provider, Crown. She found the course too difficult, and Crown cancelled her enrolment.
The Tribunal put to the applicant that PRISMS indicates that she did not complete any study in 2019. The applicant said in May 2019 she travelled to Hong Kong to visit her family and she returned in July 2019 and started study in a diploma course. The Tribunal noted that PRISMS indicates her enrolment in courses commencing in 2019 were in the Bachelor of Accounting and a Certificate IV in Accounting and Bookkeeping, both of which were cancelled. PRISMS did not show any other enrolments for 2019. The applicant insisted that she undertook and successfully completed a Diploma of Accounting course from May 2019 to May 2020. The Tribunal noted that PRISMS shows she completed study in a Certificate IV in Accounting and Bookkeeping from 13 January 2020 to 10 May 2020 and in a Diploma of Accounting from 11 May 2020 to 9 May 2021.

The Tribunal put to the applicant that from the date of cancellation of Bachelor of Accounting enrolment on 26 April 2019, until receipt of the NOICC on 9 December 2019, she was aware that she was not enrolled in a course at the same level as, or at a higher level than, the course in relation to which her visa was granted and she would have been aware that she was in breach of her visa conditions. The Tribunal asked her whether she contacted the Department to advise of the change in her circumstances. She did not dispute that she was aware she was not studying at the required level and said she did not contact the Department however she now knows she should have done so. Regarding the breach of her visa condition, the applicant told the Tribunal that she was still attending classes and undertaking study.
The applicant told the Tribunal that when she received the NOICC, she asked Crown to contact her agent, but it did not do so.
Noting the information she provided in a letter to the Tribunal dated 27 March 2020 that her strong wish is to complete a bachelor degree in Accounting in Australia, and the information in her statutory declaration dated 5 September 2022 that she wishes to study diploma courses and she never wants to study a bachelor course because she is not capable or interested in them, the Tribunal asked her to clarify the study she now wishes to undertake. In response, the applicant told the Tribunal that she wishes to complete the course in which she is currently enrolled. She said the course will end in July 2023. In response to the Tribunal asking the name of the course, the applicant said she is currently studying a College Diploma of Business. Noting that no such course is indicated in her PRISMS record the Tribunal asked for confirmation. She confirmed the course is a College Diploma of Business. PRISMS shows the applicant is currently enrolled in Graduate Diploma of Management (Learning) which will finish on 11 June 2023. This CoE was created on 19 July 2022 and the course is at Level 9 from the AQF. Given that the CoE was created 2.5 years after her visa was cancelled, and that the applicant did not appear to know the correct name of the course she is currently undertaking, the Tribunal places minimal weight on this evidence as demonstrating her current intention to study at the required AQF level.
When asked whether there is a compelling need to travel to or remain in Australia, the applicant told the Tribunal that she has been studying for so long and she wishes to complete her study and not give up.
When asked about the hardship that may result from cancellation of her visa the applicant said there would be no hardship.
In response to the Tribunal asking what study she intends undertaking in Australia if her visa is not cancelled, the applicant said she wants to complete her study and find a job in Australia.
The representative made submissions on behalf of the applicant and said he wished to raise two matters. The first was that Crown should have tested the applicant prior to enrolling her in a Bachelor of Accounting. He questioned whether Crown followed the correct process. He said Crown offered her the Bachelor of Accounting and “directed” and arranged for the enrolment and therefore the applicant was enrolled in the course and her CoE was cancelled due to factors outside her control. The second matter was Crown allowing the applicant to continue studying diploma courses after her enrolment in the Bachelor of Accounting was cancelled. He said Crown did not appear to have a problem with this. The representative conceded that the applicant should have asked him about her visa status after her enrolment in the Bachelor of Accounting was cancelled but said she had stopped coming to see him. He said she thought Crown was contacting him. He also referred to Crown in March 2020 sending a letter recommending that she find another college or university within seven days. A copy of this letter was not provided however the Tribunal pointed out that this was more than seven months after the applicant’s enrolment in the Bachelor of Accounting was cancelled.
The applicant and the representative referred to Crown’s delay in forwarding the NOICC to the representative. The NOICC was addressed to the applicant and she was requested to provide a response. It is not the role of an education provider to respond to the NOICC. In any event, the applicant had breached her visa condition more than seven months earlier. The Tribunal notes that the applicant has now had the opportunity at the hearing to respond to the matters raised in the NOICC.
In her statutory declaration dated 5 September 2022, the applicant said she had studied continuously at Crown since January 2015. She said she finished her Diploma course in Leadership and Management and then the Advanced Diploma course in Leadership and Management at the end of 2018. The letter from Crown dated 3 March 2020 says she completed the Advanced Diploma course in Leadership and Management however the Tribunal notes that a Certificate has not been provided and PRISMS shows her enrolment in the course was cancelled on 11 January 2018.
The letter from Crown dated 3 March 2020 also refers to the applicant’s enrolment in a Bachelor of Entrepreneurship and Innovation course and cancellation of this enrolment. This course does not appear in the applicant’s PRISMS record however the dates of enrolment and cancellation suggest that this was the applicant’s enrolment in the Bachelor of Accounting.
Post hearing evidence.
Following the hearing, the representative provided details of the applicant’s enrolment and said, “the college once again confirmed that from PRISMS there was a clear and official record of Ms So Fong Yeung's enrolment with the College during the 2019-2020 period”. The confirmation consisted of an email dated 24 September 2022 to the applicant from the Marketing Officer at Crown. The subject line says “sofong yeung study record”. The only information in the body of the email was the following table:

BSB51915 Diploma of Leadership and Management 9/01/2017 26/11/2017

FNS30315 Certificate III in Accounts Administration 8/01/2018 2/12/2018

FNS40217 Certificate IV in Accounting and Bookkeeping 13/05/2019 10/05/2020

FNS50217 Diploma of Accounting 11/05/2020 9/05/2021

FNS60217 Advaanced Diploma of Accounting 5/07/2021 5/06/2022

BSB80120 Graduate Diploma of Management 4/07/2022 11/06/2023

The post hearing evidence does not indicate the relevance of the dates in the two columns however the Tribunal assumes they refer to a commencement date and a finish date. The evidence is consistent with the Tribunal’s understanding of the applicant’s enrolment as set out in paragraph 25 hereof save for the indication that the applicant commenced a Certificate IV in Accounting and Bookkeeping on 13 May 2019 and finished the course on 10 May 2020. As noted in paragraph 29 hereof, PRISMS shows this CoE was cancelled, and the applicant completed a Certificate IV in Accounting and Bookkeeping from 13 January 2020 to 10 May 2020. The Tribunal notes that even if PRISMS is not correct, and the applicant did commence the course on 13 May 2019, this study would not have been at the level from the AQF for which her visa was granted. Further, the applicant’s evidence at the hearing was that she undertook and successfully completed a Diploma of Accounting course from May 2019 to May 2020. The post hearing evidence and PRISMS do not support this contention.
The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The applicant told the Tribunal her purpose in coming to Australia was to study. On 10 April 2019 the applicant was granted a Student Visa to study in Australia to obtain a Level 7 qualification from the AQF. The applicant has not completed study to obtain a Level 7 (or higher) qualification. The Tribunal accepts that the applicant and has undertaken study at a lower level since her enrolment in the Bachelor of Business was cancelled on 29 April 2019. The tribunal accepts that she is currently enrolled in a Graduate Diploma of Management however this CoE was created on 19 July 2022, more than 18 months after the NOICC was issued. At the time the NOICC was issued the applicant had not been enrolled in a course at the required level for a period of more than seven months.
The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.
The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response she said she has been studying for so long and she wishes to complete her study and not give up. The Tribunal does not consider this constitutes a compelling need. The Tribunal noted that the applicant was unable to correctly name the course in which she is currently enrolled, which is a Level 9 course from the AQF.
The applicant’s failure to maintain enrolment in a registered course that will provide a qualification from the AQF that is at the same level as, or at a higher level than, the course in relation to which the visa was granted, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202(2)(b) since 29 April 2019. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.
The applicant’s non-compliance for period of more than seven months prior to the NOICC weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant told the Tribunal that no hardship will be caused by cancellation of the visa however the accepts that cancellation of the applicant’s visa will likely be disappointing to her because she wants to complete her study in Australia. The Tribunal gives this some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of her failure to maintain enrolment in a registered course that will provide a qualification from the AQF that is at the same level as, or at a higher level than, the course in relation to which the visa was granted. The applicant told the Tribunal that her education provider, Crown, recommended she undertake study in a Bachelor of Accounting, and she contended that Crown should have assessed her ability to undertake study at that level prior to issuing a CoE. The representative’s submissions included a similar argument and said Crown “directed” and arranged the enrolment and therefore the applicant’s enrolment in the Bachelor of Accounting and cancellation of the enrolment were due to factors outside her control.
The Tribunal takes the view that it is the visa holder’s responsibility to determine whether they wish to enrol in a course. The visa holder may make enquiries of education providers regarding courses however the decision to enrol in a course is the visa holder’s decision.
The Tribunal takes the view that it is the visa holder’s responsibility to ensure compliance with visa conditions and it is not the role of education providers. In any event there is no evidence before the Tribunal to substantiate the applicant’s claim that she enrolled in a Bachelor course on the basis of a recommendation made by her education provider or as contended by the representative, that her education provider “directed” her to enrol in the course. Crown’s letter dated 3 March 2020 says she was offered enrolment in a Bachelor course.
The Tribunal put to the applicant that she remained in Australia for several months as the holder of a student visa during which time she was not enrolled in a course at the required level. She told the Tribunal that she was still attending classes and undertaking study. As noted, PRISMS indicates that the applicant did not complete any study in 2019 and her enrolments for the Bachelor of Accounting and Certificate IV in Accounting and Bookkeeping were cancelled. The Tribunal accepts that she finished the Certificate IV in Accounting and Bookkeeping on 10 May 2020 and PRISMS indicates the course commenced on 13 January 2020.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the department
Nothing adverse is known about the applicant’s past and present conduct towards the Department. The Tribunal gives this some weight in the applicant’s favour.
Whether there would be consequential cancellations under s.140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s.189 and removed from Australia pursuant to s.198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant is not fulfilling the purpose of her travel to and stay in Australia as she did not undertake the study for which her visa was granted from 29 April 2019 until she obtained her current enrolment, the CoE having been created on 19 July 2022. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.
The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled..
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Christine Kannis
Member

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

[2022] AATA 3581

1 October 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

BSB51915 Diploma of Leadership and Management	9/01/2017	26/11/2017
FNS30315 Certificate III in Accounts Administration	8/01/2018	2/12/2018
FNS40217 Certificate IV in Accounting and Bookkeeping	13/05/2019	10/05/2020
FNS50217 Diploma of Accounting	11/05/2020	9/05/2021
FNS60217 Advaanced Diploma of Accounting	5/07/2021	5/06/2022
BSB80120 Graduate Diploma of Management	4/07/2022	11/06/2023