Student Visa Non Compliance: Migration Tribunal Reasons
December 22, 2007
Refused Matter: Student Visa Non Compliance
This decision on appeal considered whether complied substantially with visa conditions; academic performance.
The applicant applied onshore for a further Student (Temporary) (Class TU) Subclass 572 visa to undertake studies in Australia. A delegate of the Minister for Immigration and Citizenship refused to grant the visa on the basis that the applicant did not meet cl.572.235 of the Migration Regulations 1994 (the Regulations), which required the applicant to comply substantially with the conditions that applied to his last held visa. This is not a matter our firm handled.
Item 8203(3)(b) of Schedule 8 to the Regulations, one of the conditions that applied to the applicant’s last held visa, required that the applicant achieve an academic result certified by the education provider to be at least satisfactory.
The applicant’s education provider had determined that the applicant’s academic results were not at least satisfactory in the semester running from 27 February 2006 to 9 June 2006.
The applicant acknowledged that he had technically breached condition 8202(3)(b) but argued that the breach was due to exceptional circumstances beyond his control, namely that a differently constituted review body considered cancelling his student visa due to the same breach and had already identified exceptional circumstances. He also argued that his current academic performance had improved significantly and wished to continue his studies in Australia.
20 August 2007, Sydney
Held: Decision under review affirmed.
On review it was found that the applicant had not complied with the requirements of condition 8202(3)(b) of his last held student visa because his education provider had not certified his academic results as being at least satisfactory during the relevant semester.
On review consideration of earlier case authority that the breach of that condition was due to exceptional circumstances beyond his control was made, but it was concluded that the law relevant to this case did not allow the review of this matter to have regard to those exceptional circumstances. Accordingly, it was found that the applicant had not complied substantially with a condition of his last held visa and therefore failed to satisfy the criterion in cl.572.235 for the grant of a Subclass 572 visa.
