Zhang (Migration)

[2019] AATA 1272

Zhang (Migration) [2019] AATA 1272 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mingchang Zhang

CASE NUMBER:  1824278

HOME AFFAIRS REFERENCE(S):           BCC2015/3398380

MEMBERS:Melissa McAdam (Presiding)

Michael Bradford

DATE:9 April 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

Statement made on 09 April 2019 at 8:34am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Federal Circuit Court remittal – ground for cancellation – enrolment – not enrolled in a registered course – consideration of discretion – genuine intention to complete study in Australia – degree of hardship – circumstances giving rise to ground for cancellation – family issues – mental health issues – opportunity to apply for new student visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), Schedule 8, Condition 8202

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 7 March 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116(1)(b) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 of his visa because he had not been enrolled in a registered course of education for 18 months. 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. On 23 February 2016 the applicant was sent a Notice of Intention to Consider Cancellation of his Student visa, inviting him to comment on a possible breach of condition 8202, which required him to be enrolled in a registered course.  The delegate wrote that the applicant appeared to have not been enrolled in a registered course of study since 2 September 2014.

4. The applicant provided a written response to the NOICC dated 24 February 2016. The following is a summary of the response:

   a.The applicant stated that apart from this matter he has not had any history of non-compliance in the past. He completed a Foundation course at UNSW and then enrolled in a Bachelor of Commerce at Sydney University. He completed one semester there then transferred to UNSW to continue the degree.

   b.In the second half of 2013 his grandmother in China fell sick with a severe brain condition.  His grandmother raised him and is very important to the applicant.  He is closer to her than to his parents. When he learned she was ill he was deeply worried. He wished he could be with her to take care of her but was far away in Australia.  His parents forbade him from returning to China.

   c.His worry about his grandmother made him miss his lectures and classes.  He could  not make sufficient effort on his assessments.

   d.He has learned to control his feelings and thoughts and tried to restore his life.  He applied to transfer to UNSW believing this change would help him and his studies. However his parents started arguing about divorce and continue to fight. His father has disputes with his grandmother.

   e.The arguments have overwhelmed the applicant. His grandmother turned to the applicant for solace and calls him almost every day.  His parents and grandmother seem to count on him but the family crisis was beyond his capabilities. He lost concentration and became depressed and irritated.

   f.In July 2014 he applied on-line to suspend his studies at UNSW but mistakenly selected ‘discontinuation’ without realising his mistake. The university cancelled his enrolment. He did not know this for a year when he applied to resume his studies. He spoke to the head of faculty and was able to get permission to enrol.

   g.He resumed his studies but his emotional problem continued to haunt him. He became isolated. Six months ago he broke up with his girlfriend. This made him more desperate.

   h.He has recently visited a psychologist who has diagnosed the applicant with severe depression and anxiety issues. The applicant is following the psychologist’s advice and cooperating with treatment.

   i.He knows study is his most important task and would like another chance to continue his studies in Australia.

   j.He attached a copy of a psychological report, dated 23 February 2016, by registered psychologist, Hamid Dadgostar, which states:

   i.Mr Dadgostar assessed the applicant on 23 February 2016.

   ii.Mr Dadgostar set out the applicant’s background as relayed to him by the applicant.

   iii.The applicant presented as a quiet, casual-groomed young gentleman who was co-operative during interview.

   iv.The applicant presented with a high level of anxiety.

   v.The applicant exhibited several different tics.

   vi.The applicant’s thought and speech content appeared normal.  He was well orientated but appeared to have little insight into his condition. He appeared of normal intelligence.

   vii.The applicant self-reported his emotional state, anxiety, and disorders he experienced.

   viii.Mr Dadgostar stated that the applicant’s reported symptoms are suggestive of the presence of high levels of Clinical Depressive symptoms, and that the applicant also reported high levels of anxiety symptoms commonly associated with a diagnosis of Adjustment Disorder with Mixed Emotions (anxiety and depression) with Panic Disorder.

   ix.Mr Dadgostar stated that it appears the applicant may benefit from further psychological intervention to address his anxiety and depressive symptoms, to challenge some of his negative cognitions, and to increase his problem solving skills.

   Delegate’s Decision

5. The applicant submitted a copy of the delegate’s decision to the Tribunal.

6. In her decision the delegate noted that PRISMS Records showed the applicant had not been enrolled in a registered course since 2 September 2014.

7. The delegate cancelled the visa on the basis that the applicant had breached condition 8202 in relation to the requirement to be enrolled in a registered course. 

   Tribunal File Number 1603055

8. The applicant applied for review to the Tribunal. He submitted an updated report from psychologist, Hamid Dadgostar, dated 9 September 2016.  In this report Mr Dadgostar writes:

   a.The report draws on information gathered during two assessment interviews with the applicant.

   b.The applicant has stated that he has come to terms with his grandmother’s illness, is dealing with his emotions differently, and has had sufficient time to recover from his emotional trauma.

   c.The applicant states he is worried about receiving corporal punishment from his parents if he returns to China without completing his studies.

   d.Mr Dadgostar considers the applicant’s reported symptoms suggestive of the presence of mild levels of clinical anxiety symptoms.  The applicant appears to have recovered substantially since the initial assessment and is now at functional level psychologically.

9. The applicant submitted his Academic Record from Top Education Institute, dated 6 September 2016 showing that he had passed two out of four subjects in a Bachelor of International Business, and failed the other two subjects.

10. The applicant submitted a written submission by his Migration Agent which stated:

    ·The applicant’s non-compliance is “undisputed”.

    ·The series of events that occurred are compelling and completely beyond the applicant’s control.

    ·If he returns to China without a university degree it will be difficult for him to obtain a job.

    ·He has completed a trimester at Top Education Institute.  He failed two subjects because he was sick during the examination period and was not notified of the times of his supplementary exams.

    ·His psychological status has improved.

11. On 24 October 2016 the Tribunal (differently constituted) affirmed the Department’s decision  to cancel the applicant’s student visa.

    Federal Circuit Court application

12. The applicant appealed the Tribunal decision in the Federal Circuit Court[1].

    [1] Zhang v Minister for Immigration & Anor [2018] FFCA 1946.

13. The Court’s judgment, delivered on 24 July 2018, recorded the following:

    The Delegate’s decision referred to records on the Department’s Provider Registration and Internal Student Management System (“PRISMS”), which indicated the Applicant had not been enrolled for less than 18 months in a registered course of study since 2 September 2014. This information was incorrect. The Applicant had been accepted for enrolment in September 2015 for the following semester.

    …

    The First Respondent concedes that the Applicant was enrolled in a Bachelor of Commerce degree at UNSW for the second semester in September 2015 and that, contrary to its statutory obligation, acceptance of the enrolment had not been uploaded onto the PRISMS.

    …

    I accept the submission of the Applicant that the Tribunal’s decision was influenced by the PRISMS records. One cannot be sufficiently confident that the Tribunal would inevitably have reached the same decision had the Applicant’s true enrolment position been reflected on the PRISMS.

    … that material non-compliance by the UNSW resulted in an invalid exercise of the power to cancel the Applicant’s visa made pursuant to s.116(1)(b) of the Act for the reasons given by the Tribunal. The Tribunal’s decision to cancel the Applicant’s Student Visa for the reasons it gave was tainted by the non-compliance of UNSW with s.19 of the ESOS Act because the Tribunal failed to appreciate that failure; and, that failure was material to the Tribunal’s decision to cancel the Applicant’s Student Visa.

    Accordingly, in the circumstances, the Tribunal’s decision is affected by jurisdictional error.

14. The Federal Circuit Court set aside the matter and remitted it to the Tribunal for determination according to law.

    Pre-Hearing Submission 12 March 2019

15. On 12 March 2019 the applicant’s Agent submitted the following documents to the Tribunal:

    a.A Certificate of Completion from the UNSW, dated 21 November 2012, confirming that the applicant completed the UNSW Foundation Year.

    b.The applicant’s Academic Record from the University of Sydney recording his pass of three subjects and failure of seven subjects in a Bachelor of Commerce, in 2013-2014.

    c.A Confirmation of Enrolment (COE) from Elite Education Institute to the applicant for a course, ’Bachelor of Business (Professional Accounting)’, commencing 4 March 2019 and ending 1 March 2021.

    d.A letter from Hamid Reza Dadgostar, Registered Psychologist, dated 11 March 2019 stating that the applicant is his client and has been treated for “psychological distress” since 23 February 2016. The applicant has attended  23 sessions of ‘psychotherapy’ and two assessment interviews.

    e.A report from Mr Dadgostar, dated 11 March 2019, which states:

    i.The applicant stated he continues to suffer from anxiety and depression due to his visa issue.

    ii.He is preoccupied by thoughts that if he returns to China he will have to compete with tens of millions of students and won’t have a chance of entering university because he has been away from the Chinese education system for so long.

    iii.His parents do not wish to see him in China without a qualification. He may be punished physically by his parents.

    iv.He has recovered from his previous stressors. His grandmother is deceased. He was living in ’limbo’. His parents paid for his legal fees but did not have the finances to support his education because of his grandmother’s health expenses.  Now his grandmother is deceased his parents have more money to help support his education.

    v.The applicant’s reported symptoms are suggestive of moderate levels of Clinical Depressive syndrome. The applicant’s reported anxiety symptoms are commonly associated with a diagnosis of Adjustment Disorder with Mixed Emotions.

    vi.The applicant has benefited from psychological intervention.

    f.A submission by the applicant’s Agent repeating the background to the applicant’s visa, review and Court applications. The Agent’s submission also stated:

    i.The applicant does not dispute that there was a period of one year from 2 September 2014 in which he was not technically enrolled in a registered course.

    ii.The applicant understands he will be viewed as failing to comply with Condition 8202.

    iii.Even though there is a breach, cancellation is discretionary.

    iv.The applicant’s purpose of stay in Australia continues to be study.  He is keen to complete a bachelor degree in Australia.

    v.At the time of the previous AAT hearing the applicant had completed one semester of study in a Bachelor of International Business at Top End Education institute. After he received the AAT’s decision he lost hope and it was financially difficult to continue his studies.

    vi.The applicant has now enrolled in a two year Bachelor of Business. He has decided to pursue accounting.

    vii.The applicant faces significant pressure from his parents and family in China. if he returns to China now he would be a disappointment to them and experience shame and humiliation. He himself will also be devastated.

    viii.He has a compelling need to stay in Australia to complete his degree.

    ix.His mental health will likely deteriorate if the cancellation of his visa is not set aside.

    x.The validity period for the applicant’s Student visa has now expired.  However if the cancellation is set aside this will allow the applicant to lodge another Student visa application.

    Tribunal Hearing, 18 March 2019

16. The applicant appeared before the Tribunal (currently constituted) on 18 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The following is  a summary of the information provided by the applicant in the hearing:

    a.He has enrolled in a new Bachelor of Accounting course in Sydney because he needs to get a degree. The course he has chosen suits his needs. His Education Agent helped him choose it. The agent thinks the applicant will be able to complete the course successfully and that it is the right level for him because it is simple and not too complicated.  The agent has other clients who have been able to complete the course and found the subjects very simple.  The applicant told the education agent the type of course he wanted  and the agent then searched available courses and was able to recommend the Elite Education course.

    b.The subjects he is enrolled in are Management, Finance, Accounting and Information Systems. His enrolment was only confirmed last week so he has not yet started to attend class. He will start attending this day, as there is a Finance class scheduled in the afternoon, following the hearing. Classes started in early March so he has missed the first two weeks. He has not yet received his student access from Elite College so has not been able to access the study materials for his course. He should be able to soon. He will then have more information about the subjects offered in the course.

    c.The course provider is Elite Education. They are located in Quay Street, Haymarket. He has been there to register for the course.

    d.He applied for the course about three or four weeks ago.  He could not apply earlier as he needed to obtain sufficient money to pay the course fees. The fees are $9,000. His parents have recently provided the money to him.  They spent a lot of money on his Federal Circuit Court appeal, which was completed in July last year. He was also waiting for his mental state to improve so that he was confident he could successfully study again. He has been seeing a psychologist who has been treating him. 

    e.He had previously enrolled in a Bachelor of Commerce at UNSW in September 2015 but did not complete the first semester. His visa was cancelled in March 2016. He had started studying a Bachelor of International Business at the time.  He passed two out of four subjects in the Bachelor of International Business. He received the Cancellation Notice and his mental health was not good.  He stopped studying the course after the second term.

    f.He stopped going to class for two reasons, the first one was he received his AAT result in October 2016 and this was a big blow to him. His mental health became really bad and he was seeing his psychologist. He has records of his visits to the psychologist.  The second reason was that he appealed the AAT’s decision to the Federal Circuit Court.  It cost over $30,000.  His family couldn’t afford to continue to pay his tuition fees. His grandmother was ill and her hospital treatment was expensive.

    g.He was enjoying his study of International Business but because his AAT case was unsuccessful he was not sure he could continue. He has not tried to re-enrol in the International Business course because its accounting content is similar to the Elite Education bachelor course he has found. This course suits him better in terms of duration and difficulty. He is 25 years old and needs a Bachelor degree as soon as possible so he can go home and try to get a job.  He has passed some subjects which he hopes to get credit for in his new course.

    h.He can’t afford to study another difficult course that he might fail. He has now regained his confidence and his psychologist thinks he is able to study successfully again. He will study four subjects a semester in his new course. He is happy about his new course and hopes to get good results.

    i.His parents have paid for all his study and his living expenses in Australia. He has no other source of income.  He has not worked in Australia. His parents send him about $6,000 - $7,000 every two or three months for his living expenses, including rent. He rents an apartment with a friend who shares the rent and bills.

    j.He has been seeing a psychologist since February 2016. In the beginning he saw the psychologist fortnightly.  Last year it was about once a month or once in two or three months.  He saw the psychologist about ten times last year.  It cost $200 a visit.  He paid in cash and has no receipts for the consultations.  After his Federal Circuit Court case finished his psychologist told the applicant he did not need to see him so often. The applicant last saw the psychologist about one month ago to be assessed and receive the report.  The psychologist told him he was able to study and did not need to see the psychologist unless he wanted to talk about any personal issues that may arise.  The applicant feels his personal issues are resolved and he feels more open-minded and positive now.  He doesn’t think he has any need now to see the psychologist.

    k.His parents are able to support his studies again because he no longer has any legal costs. Because his grandmother has passed away in November 2017 his parents no longer need to pay her medical expenses.

    l.He was only 18 years old when he left China. His parents sent him to Australia before he completed high school in China.  If he returns to China now without a degree he will not be able to compete with the other young people. He won’t be able to go to university in China.  He will need to attend a college to complete his high school to be able to go to university in China.  It will be impossible for him to get a job in China.

    m.His parents won’t accept that he did not achieve anything in Australia. They will not forgive him.  He will be very poor emotionally and physically.

    n.He agrees he has not achieved much academically in Australia and he apologises for this.  His family issue factors and his mental health played a big part which he could not really control.

    o.If he can return to China with a degree he will be able to become independent and work to try to pay his parents back financially as much as possible.  When he finishes his degree course here he will return to China.

    p.After his Federal Circuit Court case was completed it took him some time to search for the right course to enrol in and obtain the money for his tuition fees from his parents. He was still seeing his psychologist and was unsure if could successfully study or not.

    q.He has been in Australia a long time. He accepts personal responsibility for his situation but there were also the other factors that affected him.  He believes he is now very willing and capable of completing his course of study. He will make a lot of effort. He knows it is his last chance.  He is able to study. He had an 8.1 average for his Foundation Studies.

    r.The applicant’s Migration Agent submitted that the applicant was initially excited to study in Australia but lost momentum in his studies because of his family factors.  He hoped a change of environment from Sydney University to UNSW would help but he was not in the right head space.  He is worried about verbal and physical punishment from his parents in China.

    s.The applicant’s Migration Agent submitted that although he failed subjects he was always attempting to enrol and study.  His Education Agent has recommended his current course as an ‘easy course’. The applicant has been concentrating on preparing for his Tribunal hearing so has not been able to obtain much information about the subjects in his new course. He will be able to do this easily when the Institution gives him on-line access.

    CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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?

2. 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 her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a), and

   ·has not been certified by her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).

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

4. The applicant has admitted he was not enrolled in a registered course of study from  September 2014 until September 2015.  The evidence from the Department’s PRISMS records also confirm that the applicant was not enrolled in a registered course of study in this period of time. The breach of compliance was for a closed period of twelve months which came to an end when he voluntarily initiated enquiries about his enrolment status.

5. The applicant was not enrolled in a registered course from September 2014 to September 2015.  Accordingly, the Tribunal finds that the applicant did not comply with condition 8202(2). 

   Consideration of the discretion to cancel the visa

6. 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, whether the visa holder has a compelling need to remain in Australia.

7. The applicant has provided information that he came to Australia to study. He has completed one course of study and passed subjects in other courses of study.  He has provided evidence which the Tribunal accepts that he has continued unsuccessfully to try to study and to find appropriate courses.  He has also provided oral and documentary evidence that he is now enrolled in a Bachelor degree at a local institute and beginning studies there. On the basis of this information the Tribunal finds that the applicant has continued to remain in Australia in order to try to pursue studies and to achieve an appropriate academic qualification before returning to China.  Moreover, bearing in mind the applicant’s current personal circumstances, in particular his improved psychological condition and strong motive to achieve a  measure of academic success in Australia before he returns to China, the Tribunal accepts his evidence that he is likely to complete the Bachelor of Accounting course, if given the opportunity. The Tribunal therefore gives this consideration weight in the applicant’s favour.

   The extent of compliance with visa conditions

8. There is nothing before the Tribunal to indicate that the applicant has breached other conditions on his visa. The Tribunal expects that a visa holder will generally adhere to all the conditions of his or her visa. In this case the applicant’s breach is a significant one.  As such the Tribunal gives limited weight in the applicant’s favour to the fact that there appears to be no additional breaches.

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

9. The applicant has submitted that his parents have incurred a great deal of expense in funding his stay and studies in Australia. The Tribunal accepts that to receive no return for such a large financial investment in the applicant would impose hardship upon his family.

10. The applicant has further submitted that his return to China without an academic qualification will cause great shame to his parents. The Tribunal accepts this in light of the evidence of the efforts his parents have gone to for the applicant’s education in Australia, and the cultural expectations which may occur within Chinese families and society.

11. The applicant stated he will face great shame, oral and physical punishment, and difficulty obtaining employment in China if he is not permitted to remain in Australia to complete a degree.  The Tribunal accepts there is a likelihood his parents’ disappointment and displeasure in his academic achievements in Australia may prompt them to punish him, either orally, financially, or with other restrictions or requirements.  However there is little evidence to support the applicant’s fear they will be physically violent to him or punish him ‘corporally’.  As put to the applicant he is a 25 year old adult man. There appears little reason for his parents to try to physically harm him given the numerous non-violent measures they can take against him to effectively punish him. There is also no evidence from the applicant to the effect that his parents have made any threats of physical violence to date.

12. The Tribunal accepts the evidence that in a competitive employment environment the applicant would be at a disadvantage in China without a good academic qualification and with his poor academic record in Australia.  The Tribunal does not however accept that he would be unable to obtain any employment in China but is satisfied he may have difficulty obtaining professional employment.

13. In view of the above the Tribunal considers there would be a level of significant hardship to both the applicant and his parents if his visa remains cancelled and he is unable to complete a Bachelor degree in Australia.  The Tribunal gives this consideration weight in the applicant’s favour.

    The circumstances in which the ground of cancellation arose.

14. The applicant has explained in his written responses and his oral evidence that he gave up his studies because family issues caused him serious emotional distress badly affecting his mental health.  He submitted evidence from a qualified psychologist who has been treating him over the past few years since the applicant suspended his studies. The applicant provided detailed statements about the emotional significance of his grandmother and her long illness, as well as his parents’ arguments and their talk of divorce.

15. The Tribunal accepts that these matters would have been quite distressing and would adversely affect the applicant’s ability to attend class or concentrate upon his studies. The Tribunal therefore gives these matters weight in the applicant’s favour.

    Past and present conduct of the visa holder towards the Department

16. There is nothing before the Tribunal to indicate that the applicant has not cooperated with the Department in his dealings with it, since receiving the Notice of Intention to Cancel his visa.  

17. The applicant has also cooperated with the Tribunal in providing information and responding to the Tribunal’s queries and invitations.

18. The Tribunal gives this consideration some weight in the applicant’s favour.

    Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject 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

19. The Tribunal considers it unlikely that the visa applicant would be detained if his visa remains cancelled.  The Tribunal notes he will have a time limited period in which he can leave the country.  The Tribunal does accept that the applicant will be temporarily barred from being granted a further visa to Australia.  However this is due to the operation of the law in Australia and is a result of the applicant’s own actions. The Tribunal gives this consideration only minimal weight in the applicant’s favour.

    Whether any international obligations would be breached as a result of the cancellation

20. There is nothing before the Tribunal to indicate there are international obligations to consider.

    Any other relevant matters

21. The applicant impressed the Tribunal with his willingness to own his past mistakes and difficulties and to deal with them responsibly.  The applicant sought professional help for his mental health issues and appears to have positively engaged with his treatment.  The Tribunal acknowledges the applicant’s several attempts (albeit sporadic) to resume study, and to finally make a concerted effort  to enable his successful study in Australia earlier this year.

22. The Tribunal notes that the applicant’s Student visa was due to cease in March 2016 and this date has well passed. If his Student visa cancellation is set aside he would have to apply for a further visa in order to lawfully stay in Australia. For him to continue his studies he will have to apply for and meet the criteria for the grant of the new Subclass 500 Student visa. He will then be required to demonstrate that he is willing to study, and has appropriate enrolments. The applicant has a current enrolment at the Elite Education Institute in Sydney in a Bachelor of Business (Professional Accounting), and if he attends class and complies with assessment requirements he could arguably demonstrate a willingness and capacity to study. The Tribunal  accepts the applicant feels confident he will be able to successfully complete the course as it has been particularly selected to suit his needs, academic capabilities and aspirations.

23. Having considered the evidence before it, the Tribunal accepts that the applicant genuinely wishes to complete his studies in Australia.  The Tribunal accepts that the applicant’s parents have dedicated significant funds to enable the applicant to complete a degree in Australia.

24. The considerations as set out above largely weigh in favour of the Tribunal exercising its discretion to revoke the cancellation, and allowing the applicant the opportunity to apply again for a Student visa.

25. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

    DECISION

26. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Melissa McAdam
    Member

    
    

    Michael Bradford
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    …

    Schedule 8

    8202(1)  The holder (other than the holder of a Subclass 560 (Student) visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa) must meet the requirements of subclauses (2) and (3).

    (2)A holder meets the requirements of this subclause if:

    (a)the holder is enrolled in a registered course; or

    (b)in the case of the holder of a Subclass 560 or 571 (Schools Sector) visa who is a secondary exchange student — the holder is enrolled in a full time course of study or training.

    (3)A holder meets the requirements of this subclause if neither of the following applies:

    (a)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 10 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007;

    (b)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for:

    (i)section 19 of the Education Services for Overseas Students Act 2000; and

    (ii)standard 11 of the National Code of Practice for Registration Authorities and Providers of Education and Training to Overseas Students 2007

    (4)In the case of the holder of a Subclass 560 visa who is an AusAID student or the holder of a Subclass 576 (AusAID or Defence Sector) visa — the holder is enrolled in a full-time course of study or training.