MIGRATION - cancellation - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - enrolment in a registered course - applicant ceased enrolment - study and career path changed - applicant changed to vocational courses - family health issues - financial hardship - poor academic progress - decision under review affirmed

Migration Act 1958 (Cth), ss 48, 116, 140, 359

Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; Schedule 8, Condition 8202

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
2. The delegate cancelled the visa on the basis the visa holder had not been enrolled in a registered course for 11 months and therefore did not comply with the requirements of subclause (2)(a) of condition 8202. 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. The applicant appeared before the Tribunal on 24 March 2025 to give evidence and present arguments.
4. The applicant submitted the following evidence to the Tribunal in support of the application for review:
   • Department of Home Affairs (the Department) Notification and Decision Record dated 24 November 2023.
   • Applicant's Indian passport biometric information.
   • Confirmation of Enrolment (COE) for a Master of Business from 01/07/2024 to 28/06/2026.
   • Academic transcript from Polytechnic Institute Australia for four units of a Master of Business.
   • Evidence of overseas student health cover in the name of the applicant.
   • Financial evidence in relation to the applicant's parent in India including income and asset statements and tax return documents.
   • Statements of support by the applicant's parents in India.
   • Travel itinerary for the applicant's return flights to India in May/June 2023.
   • Medical evidence in relation to the applicant's father's hospital admission in February 2023.
5. The Tribunal also considered the submissions provided to the Department in response to the Notice of Intention to Consider Cancellation.
6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.

1. 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 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).
2. In the present case, the applicant's visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
3. The applicant's visa was granted subject to condition 8202, which requires the visa holder to be enrolled in a registered course. The Department accessed the Provider Registration and International Students Management System (PRISMS), which provides the Confirmation of Enrolment and study records of international students registered to study in Australia. According to the PRISMS record, the applicant had not been enrolled in a registered course of study from 14 March 2023 to 1 November 2023 when the Department sent the applicant a Notice of Intention to Consider Cancellation. The notice provided the applicant an opportunity to provide reasons why his visa should not be cancelled.
4. The applicant responded to the Notice on 3 November 2023. In his response the applicant provided a statutory declaration, a written submission and supporting documents. The applicant claimed in his statutory declaration of 2 November 2023 that his COE was cancelled because his father suffered from health issues and was unable to send the applicant funds to pay study fees. The applicant advised he has since been provided with money and at the time, had re-enrolled in a Certificate IV in Commercial Cookery.
5. At the Tribunal hearing, the applicant gave evidence about his enrolment history in Australia and the challenges he faced. The applicant claimed he had not been aware he was in breach of his Student visa condition and had not been informed by his education provider that his enrolment was cancelled. However, the applicant did not deny he had not been enrolled for the relevant period identified by the Department. Based on the information available, the Tribunal is satisfied the applicant did not comply with condition 8202 attached to his Student visa and the ground for cancellation is made out.

Consideration of the discretion to cancel the visa

1. Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department's Procedural Instruction 'General visa cancellation powers'.
   • 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
2. The applicant arrived in Australia as a student in April 2019 to undertake post graduate studies and was enrolled in a Master of Information Technology and Systems. He advised he completed one semester, however, he discontinued and instead enrolled in vocational courses. In his response to the Department's Notice of Intention to Consider Cancellation on 3 November 2023, the applicant submitted a genuine temporary entrant statement. In that statement the applicant set out in detail his plans to study cookery and hospitality and become a chef. He included details of opportunities in the industry in his home country and his desire to pursue a career in that area. On the evidence before it, the Tribunal finds the applicant's original travel to and stay in Australia was for study purposes, however, his intentions regarding his study path and career plans changed significantly once onshore.
3. The applicant claimed he has a compelling need to remain in Australia. During the hearing he said he now intends to work in real estate in India. In a written submission the representative outlined what was said to be the applicant's plans for a business involving online and direct property sales. The applicant reported that his father has relevant background knowledge in the area and the applicant will be able to combine his business qualifications. The Tribunal understands the applicant may still wish to study in Australia but is not satisfied his current claims about his career plans demonstrate a compelling need to remain.
   • the extent of compliance with visa conditions
4. The applicant was not enrolled as a student for more than 8 months, from 14 March 2023 to 1 November 2023 which was a breach of condition 8202 attached to his visa. The Tribunal considers the period of time when he did not comply with condition 8202 was significant. In addition, the applicant did not continue or complete the master's degree that was the purpose of the visa grant. The applicant held a bachelor's degree from his home country and had been granted a Student visa in Australia to build on that qualification. Instead of taking advantage of the opportunity, the applicant abandoned his post-graduate studies and enrolled in significantly lower-level certificate and diploma courses in an unrelated field. The Tribunal considered the extent of the applicant's compliance with visa conditions to be unsatisfactory.
   • degree of hardship that may be caused (financial, psychological, emotional, or other hardship)
5. In his evidence at the hearing the applicant claimed he has completed a bachelor's degree and still wants to gain post-graduate qualifications in order to build a career. The Tribunal notes the applicant has been in Australia for more than six years without completing any courses of study so far. Following the relevant period when he was not enrolled in any course, the applicant only re-enrolled in post graduate studies after he received the Notice of Intention to Consider Cancellation. He then enrolled in a post-graduate program, this time a Master of Business that began on 1 July 2024. The Tribunal understands that if his visa is cancelled, the applicant will have to leave his current master's course and depart Australia. In that case he will have to return to his home country without achieving any additional qualifications during his temporary residency in Australia.
6. The applicant's representative submitted in such circumstances the applicant will greatly disappoint his family and will face social stigma. The Tribunal finds the applicant has brought about such circumstances himself by not completing any courses of study in Australia but accepts the applicant will suffer a degree of hardship if his visa is cancelled.
   • circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder's control
7. The applicant's visa was cancelled because he remained in Australia as the holder of a Student visa but was not enrolled from 14 March 2023 to 1 November 2023 when the Department wrote to him advising of an intention to consider cancellation. The applicant responded to the Department's notice and had re-enrolled in a course of study; however, the Department made the decision to cancel the applicant's visa on 24 November 2023.
8. The applicant's evidence is that his father underwent surgery in February 2023 which caused financial distress for his family. According to the medical evidence, Nagireddy Amanagant was hospitalised between 21 and 27 February 2023 and underwent surgery for an orthopaedic issue. It was claimed this meant the applicant was unable to pay his study fees in Australia.
9. The applicant had changed his study plans and enrolled in a Certificate IV in Commercial Cookery. During the hearing the applicant was asked why he had enrolled in a different field. He said his family suffered a financial crisis during COVID-19, so he changed to cookery studies. He claimed to have done so for financial reasons and because he wanted to work in that field. The applicant's representative reported in a written submission that the applicant aspired to a career in cooking but due to his father's health he reconsidered and decided to pursue a Master of Business. According to the submission, this was a "significant shift" brought about by the applicant's commitment to his family's welfare and his own career. However, the Tribunal notes the applicant was initially granted a Student visa in Australia to study a master's degree and the significant shift had occurred when he changed from a post-graduate tertiary course to vocational cookery.
10. The applicant provided evidence of having travelled to India in May 2023 to support his family. There is no evidence the applicant took academic leave during this period or sought advice from the Department about visa conditions. It is alleged that after he returned to Australia in July 2023 the applicant attempted to re-enrol in a master's program but was unable to. The Tribunal finds the applicant's own evidence and the claims made in the representative's submission are not consistent. When the applicant responded to the Department's notice in November 2023, he provided his genuine temporary entrant statement in regard to studies in cookery and hospitality and according to the Department, had re-enrolled in a Certificate IV in Kitchen Management.
11. The Tribunal considered the submissions and supporting evidence provided regarding his father's health and surgery in February 2023. Nevertheless, the applicant has not provided any evidence for his alleged attempts to re-enrol prior to 2 November 2023. If the applicant was unable to pay study fees he could have contacted his education provider and requested either a deferment, or compassionate leave if he was required to return to India for personal reasons. In addition, it was open to the applicant to remain at home in India until he was in a position to continue studying. The applicant could have also contacted the Department to investigate other visa options more suitable to his circumstances. As the applicant returned to Australia in July 2023 from India, he had a significant period of time to rectify his non-enrolment and failed to do so.
12. The Tribunal notes the applicant was able to re-enrol in a course of study once he received the Department's notice, but he did not commit to continued study until he re-enrolled in the master's degree that he is currently undertaking. As was put to the applicant during the hearing, he has been in Australia since 2019 but has not completed any course of study to date. The Tribunal understands the applicant faced some challenges as a Student visa holder but is not satisfied his claims account for the period of non-enrolment, in breach of visa conditions, or that the ground for cancellation arose due to circumstances that were beyond the applicant's control.
    • past and present behaviour of the visa holder towards the department
13. There is no evidence before the Tribunal to indicate the applicant has not cooperated with the Department. The applicant provided a response to the Department's Notice of Intention to Consider Cancellation. However, the Tribunal is not satisfied the applicant's past behaviour towards the Department, including his failure to seek advice or notify the Department of any reason he was unable to study, has been appropriate.
    • whether there would be consequential cancellations under s.140
14. There is no evidence before the Tribunal that there would be any consequential cancellations under s.140 of the Act.
    • 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
15. The cancellation of the visa means the applicant would be subject to s.48 of the Migration Act which would limit his options for applying for a visa. In future the applicant would also have to satisfy Public Interest Criterion (PIC) 4013 which may prevent the grant of a visa for up to three years. There is no evidence to indicate the applicant may be subject to indefinite detention as a consequence of cancellation. The Tribunal has assessed the claims and evidence in this case. The mandatory legal consequences do not persuade the Tribunal that it should not exercise the discretion to cancel the applicant's student visa.
    • 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
16. The Tribunal considered whether the visa cancellation would lead to the applicant's removal in breach of Australia's non-refoulement obligations, that is, removing a person to a country where the person faces, persecution, death, torture, cruel, inhuman, or degrading treatment or punishment. There is no evidence before the Tribunal that Australia's non-refoulment obligations would be breached as a result of cancellation of her student visa.
17. The applicant did not claim that there are children in Australia whose interests could be affected by the cancellation.
    • if it's a permanent visa, whether the former visa holder has strong family, business or other ties in Australia
18. The Subclass 500 Student Visa is not a permanent visa.
    • any other relevant matters

Section 375 non-disclosure certificate

1. On 5 March 2025 the Tribunal wrote to the applicant in accordance with s.359A of the Migration Act inviting him to comment on information. The Department issued a non-disclosure certificate and notification under s.375A of the Migration Act preventing the disclosure of certain documents held on the Departmental file in the applicant's case. The applicant was informed that the Tribunal was unable to disclose the documents or contents of the documents that are the subject of the non-disclosure certificate because they contain personal information and information relating to the Department's internal visa assessment process. The letter explained the Tribunal considers a public interest reason is clearly specified on the face of the s.375A non-disclosure certificate and the certificate is valid. The information covered by the certificate was relevant to the application for review because it is held on the Department's file, it is confidential information that relates to the applicant's case and is available to the Tribunal. The applicant was informed that the Tribunal is required to bring the existence of the s.375A non-disclosure certificate to his attention and invite him to make submissions on its validity. He was advised that if the Tribunal relies on the information contained in the Department file in its decision, it may lead to the decision under review being affirmed. The applicant was invited to comment on or respond to the information. A copy of the non-disclosure certificate was provided.
2. The applicant did not provide a specific response to the invitation. The Tribunal considers the s.375A certificate is valid as it includes public interest reasons preventing the Tribunal from: disclose, or enable a person to ascertain the existence or identity of, a confidential source of information; disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods.

1. The Tribunal assessed the applicant's circumstances and the evidence submitted individually and cumulatively. The Tribunal is not satisfied the issues encountered by the applicant during the relevant period of non-enrolment outweigh the grounds for the visa to be cancelled. On balance, the Tribunal is satisfied the discretion to cancel the applicant's visa should be exercised.
2. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

1. The Tribunal affirms the decision to cancel the applicant's Subclass 500 (Student) visa.

Representative for the Applicant: Mrs Amulya Reddy Nemakal Lakshmi (MARN: 418458)