2318628 (Migration) [2025] ARTA 516 (5 March 2025)

Decision and			
Reasons for Decision 

Respondent:	Minister for Immigration and Multicultural Affairs 
Tribunal Number:	2318628
Tribunal:	General Member T. Quinn
Place:	Melbourne
Date:	5 March 2025
Decision:	The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.

Statement made on 05 March 2025 at 3:45pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – enrolment cancelled after non-commencement – discretion to cancel visa – study difficulty, COVID disruptions and mental health, mother’s health and father’s COVID-related financial difficulty – two deferrals on compassionate grounds – enrolments and cancellations in lower level course and in different subject area – new enrolment after department’s notice of intention sent cancelled after visa cancelled – work prioritised over study – oldest child and care for parents – finely balanced factors – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (1A), 338(2), 347
Migration Regulations 1994 (Cth), r 2.43A, Schedule 8, condition 8202(2)(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

Statement of reasons

application for review
1.  	 The applicant was granted a Subclass 500 (Student) visa (‘the visa’) on 16 August 2018.
2.  	The expiry date of the applicant’s student visa was 15 March 2024, providing for over six years during which the applicant would be permitted to reside in Australia for the purposes of full-time study.  
3.  	On 13 November 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s visa the basis that the applicant had failed to comply with a condition of their visa.  In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full-time registered course.  The applicant did not comply with this condition of their visa from 8 March – 3 November 2023.  
4.  	On 16 November 2023, the applicant applied to the Administrative Appeals Tribunal (‘the AAT’) for a review of the delegate’s decision to cancel the visa. 
5.  	On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’).  Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.  The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.  This decision and statement of reasons is made by the Tribunal.   
6.  	On 13 February 2025, the applicant appeared before the Tribunal via video hearing to give evidence and present arguments.  The applicant was represented in relation to the review, but their representative did not attend the hearing of 13 February 2025.
7.  	The Tribunal exercised its discretion to hold the hearing by video conference.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also considered its objective to provide a mechanism of review that is fair, just, quick, accessible and responsive and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
8.  	It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put. 
9.  	I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be set aside.  My reasons follow.
STATUTORY FRAMEWORK
10.  	The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations.  If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act.  In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under section 116(1A) of the Act and regulation 2.43A of the Regulations, and other matters of government policy.
11.  	Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out.  Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act.  If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.  
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
12.  	A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa.  In this instance condition 8202 of the Regulations attached to the applicant’s visa.  This condition 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 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).
13.  	In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course of study or training.
14.  	The applicant was enrolled in a Bachelor of [Subject 1 Specialisation] but explained at hearing that his marks in English were not good enough, so he was asked by his course provider to undertake a Diploma of [Subject 1] and then commence his Bachelor level course.  
15.  	The applicant changed to a package of [Subject 2 area] courses in 2020.
16.  	A PRISMS search shows a number of cancelled enrolments for the applicant both in the field of [Subject 1] and in his [Subject 2 area] courses.
17.  	The enrolment cancellation which is the subject of this review application was for a Certificate IV in [Subject 2, Specialisation].  The applicant enrolled in this course in February 2023, and it was cancelled on 8 March 2023 for non-commencement of studies.
18.  	The Department sent the applicant a notice of intention to consider cancellation (‘NOICC’) on 1 November 2023.  The applicant responded to this on 6 November 2023 and has filed further additional submissions since that time.
19.  	The applicant re-enrolled in a new package of [Subject 2 area] courses on 5 November 2023 which were cancelled when his visa was cancelled.    
20.  	At no stage has the applicant contested the fact that he was not enrolled from April – November 2023.  
21.  	On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course.  Accordingly, the applicant has not complied with condition 8202(2)(a).  Therefore, there are grounds for cancellation.
22.  	For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists.  As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.
Timeline of study and enrolment history
23.  	The applicant originally arrived in Australia in October 2018 at the age 20.  He intended to complete a Foundation course followed by a Bachelor of [Subject 1 Specialisation] in Australia.  
24.  	The PRISMS search seems to indicate the applicant completed his Foundation studies from February – October 2019.  He then has multiple cancelled enrolments from early 2020 until he commenced a Certificate III in [Subject 2, Specialisation] in August 2022.
25.  	The applicant gave evidence that he completed his Certificate III in [Subject 2, Specialisation] in February 2023 but was never issued with his certificate.  The PRISMS search is consistent with the applicant’s submissions and suggests he did finish this course.
26.  	The applicant has several more cancelled enrolments since this time and has only completed the Foundation course in 2019 and the Certificate III in [Subject 2, Specialisation] in 2022 in his six years onshore. I am very troubled by this history.
27.  	The applicant claims:
a.	his mother has had health issues including joint pains and headaches since 2020 and that his escalated in 2022 so that he returned to Pakistan for two months which impacted his study onshore;
b.	that the COVID19 Pandemic impacted his mental health and ability to meaningfully engage with his study;
c.	the COVID19 Pandemic decimated his father’s business in Pakistan and his financial resources were impacted; and
d.	he has had serious issues with his mental health impacting his ability to study. 
28.  	The applicant has filed medical certificates dated 23 January 2021, 3 May 2022 and 16 March 2023 stating that the applicant has been suffering from depression and anxiety, insomnia, ‘many mental health issues and therefore was not able to maintain their studies’, and severe insomnia.  I note that letter of 2022 states the applicant was suffering from insomnia, but the letter of 2023 states the applicant was suffering from ‘severe insomnia’.  The letters read as though the applicant’s mental health issues have escalated in severity and complexity between 2021 and 2023.  The applicant’s evidence at hearing was consistent with this and he became very distressed during the hearing relaying the history of his mental health.
29.  	The applicant applied for and was granted deferral in two of his courses on compassionate grounds.
30.  	On 1 November 2023, the applicant was sent the NOICC.  The applicant responded to the NOICC on 6 November 2023 claiming extenuating circumstances and filing new enrolments for a package of [Subject 2 area] courses.
31.  	The applicant is now again unenrolled because he does not presently have study rights on the bridging visa he has held since his visa was cancelled.  Although he has been working.  
Consideration of discretion to cancel the visa
32.  	For student visas, there are prescribed matters to which a decision maker must have regard as mentioned in section 116(1)(b): section 116(1A) of the Act and regulation 2.43A of the Regulations.  The prescribed matters are set out in the attachment to this decision.  I have regarded the prescribed matters.
33.  	I have also 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’.
Prescribed matters 2.43A
Whether there is evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa.
34.  	There is evidence that the applicant was not complying with his student visa conditions from March – November 2023.  The applicant gave evidence that he wishes to remain in Australia and complete his Certificate III in [Subject 2, Specialisation] to get the actual certificate of completion and a Certificate IV in [Subject 2, Specialisation], so he has not wasted his money and his life all of these years.
Other considerations
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
35.  	I refer to and repeat paragraphs 14-31 above.
36.  	The applicant gave evidence that he has been working onshore since his arrival – first as [an occupation 1] and then as [an occupation 2].  When it was put to him later in the hearing that there was a document in the Department file suggesting he holds a Certificate II in [Subject 3], the applicant also gave evidence that he was working in [Subject 3 work sector] for two years onshore.
37.  	The applicant gave evidence at hearing that he was not working when he returned to Pakistan for 2 months in 2022 or from February until November 2023.
38.  	I found the applicant’s evidence about his work onshore presented as contrived and I am concerned that he has prioritised work over study.  On any view, the applicant’s own evidence was that he was working at the time of the first two medical certificates provided (described above and dated in 2021 and 2022) and his limited academic progress during his time onshore raises concerns about his genuine intentions.  On any view, even outside of his visa breach period, the applicant has spent considerable time working onshore which I consider is not consistent with his submissions that he was unable to study.  
39.  	The applicant gave evidence at hearing that because he was not able to obtain the actual Certificate III in [Subject 2, Specialisation] certificate, he will not be able to obtain work without the actual qualification if he has to return to Pakistan.  The applicant wishes to remain in Australia and complete his Certificate III in [Subject 2, Specialisation] to get the actual certificate and a Certificate IV in [Subject 2, Specialisation], so he has not wasted his money and his life all of these years.  
40.  	Regarding paragraphs 27 and 28 above, I empathise with the applicant in relation to the aforementioned challenges he has faced.  I also understand that a visa cancellation can be disappointing for visa holders and their families.
41.  	I have considered all the evidence before me.  I place some weight against cancelling the visa regarding this factor.
Circumstances in which ground of cancellation arose
42.  	I refer to and repeat paragraphs 35-40 above.
43.  	The applicant gave evidence at hearing about the emotional, psychological, practical and financial challenges he has faced since 2020 as set out in paragraphs 27 and 28 above.  
44.  	The applicant has provided three medical letters.  When asked at hearing if he sought help from a psychologist or counsellor, he said it was too expensive.
45.  	I consider the matters listed in paragraphs 27 and 28 above and the consequential emotional, psychological and financial problems faced by the applicant were to a great extent out of his control.  However, it was open to the applicant to return to Pakistan at any time.  I also consider that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same.  It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.  
46.  	I also note that the applicant has been working onshore with the exception of two months in 2022 and nine months in 2023 but only completed a Foundation course and a Certificate III course in over six years onshore.  This evidence troubles me to a great extent and even allowing for the applicant’s personal circumstances, I am concerned about the multiple cancelled enrolments and the limited academic progress he has made in over six years onshore.
47.  	Taking these factors together as a whole, I place some weight in favour of cancelling the applicant’s visa in this regard.
Extent of compliance with visa conditions
48.  	The applicant appears to have otherwise complied with student visa conditions.  However, I consider the lack of academic progress made by the applicant in over six years onshore is of great concern.
49.  	The applicant’s breach of the condition of his visa to remain enrolled is concerning, being eight months.  I consider the eight month breach a significant breach and place weight in favour of cancelling the applicant’s visa in this regard.
The degree of hardship that may be caused to the visa holder and any family members
50.  	The applicant gave tearful evidence at hearing about how disappointing it will be for him and his family if he has to return to Pakistan without a meaningful qualification that he can use to secure work.  He became very distressed and talked of having attempted suicide in the past as well as confusion about his sexuality and how hard it would be having to return to Pakistan in this state where issues of mental health and sexuality confusion are not acceptable.
51.  	The applicant gave evidence that as the oldest he must take care of his parents and it will be too much on him if he has to return to Pakistan and ‘without study I am useless over there’.  
52.  	The applicant’s mental health issues were evident during this period of his evidence during which he became increasingly distressed and had difficulty self-regulating and articulating his evidence. 
53.  	I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study.  I recognise that the hardship is felt by family members who may also feel let down and disappointed.
54.  	I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa.  
55.  	Ultimately, I consider the evidence weighs against cancelling the visa in relation to this consideration.
The visa holder’s past and present behaviour towards the Department
56.  	There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department.  I give some weight against cancelling the applicant’s visa in this regard.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
57.  	This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, 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
58.  	If the visa is cancelled, this will result in the following:
a.	the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.	the applicant will have limited options to apply for further visas in Australia;
c.	the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed.  The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration against cancelling the visa because:
•	these are the intended consequences of the legislation when a visa is cancelled under these grounds;
•	it reflects the seriousness with which the Department takes this type of cancellation ground;
•	the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
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
59.  	The applicant gave evidence that with his mental health issues and sexuality confusion he would be abused in Pakistan.
60.  	The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled.  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. 
61.  	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.
62.  	The Tribunal gives this consideration neutral weight. 
Any other relevant matters
63.  	I consider the factors for and against the applicant in this case very finely balanced.  Ultimately, I consider the applicant ought to be given the chance to complete the study he proposes to undertake.  Should the applicant conduct himself in such a way that the Department has cause for concern about his study and intentions onshore, the evidence he gave in connection with this case will clearly be relevant to any assessment his intentions and study behaviour in Australia.
CONCLUSION
64.  	Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.
decision
65.  	The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.

Date(s) of hearing:	13 February 2025    
Representative for the Applicant:	Mrs Kiranjeet Kaur Dhaliwal (MARN: 2217936)

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.

ATTACHMENT – Extract from reg 2.43A of the Migration Regulations 1994 (Cth) 
2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition

(1)	This regulation applies in relation to a visa if:
a.	the visa is a temporary visa other than:
i.	a criminal justice visa; or
ii.	an enforcement visa; and
b.	the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition ) to which the holder's visa is subject; and
c.	regulation   2.43B does not apply in relation to the visa.
(2)	 For the purposes of paragraph   116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph   116(1)(b) of the Act:
a.	any written certificate issued by a certifying entity that is a government entity if the certificate:
i.	was issued in relation to the visa holder in respect of a workplace exploitation matter; and
ii.	sets out the matters agreed to by Immigration and the government entity;
b.	any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that:
i.	there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and
ii.	if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter--that time has not expired; and
iii.	there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected;
c.	whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph   (a) or (b) relates;
d.	whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa;
e.	whether the visa holder has committed, in writing, to do both of the following:
i.	 to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph   (a) or (b) relates;
ii.	to comply in future with the visa conditions to which the holder's visa is subject;
f.	whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph   (e) of this subregulation, or paragraph   2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa.
(3)	Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
a.	paragraph   116(1)(b) of the Act for non - compliance with a condition (other than the relevant condition) to which the visa holder's visa is subject; or
b.	a provision other than paragraph   116(1)(b) of the Act.
Note:  For example, see subregulation   2.43(2) for the circumstances in which the Minister must cancel a visa

Attachment

•	‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act 2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.
•	All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.  Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.  The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia.  Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database.  The database then records a Confirmation of Enrolment (‘COE’) for the student.  The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.