MIGRATION - cancellation - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - enrolment in a registered course - gap in studies - multiple health issues - mental health issues - family bereavement - decision under review affirmed

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

Migration Regulations 1994, 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 25 March 2025 to give evidence and present arguments.
4. The applicant was represented in relation to the review.
5. The applicant submitted the following to the Tribunal in support of the application for review:
   • Department of Home Affairs (the Department) notification and decision record dated 1 December 2023.
   • The representative's written submission received on 27 February 2025.
   • Advanced Diploma of Accounting dated 8 June 2018.
   • Certificate III in Early Childhood Education and Care dated 3 September 2021.
   • Diploma of Early Childhood Education and Care dated 4 August 2022.
   • Travel tickets and itineraries in the name of the applicant.
   • Condolence statement regarding the passing of Keshab Prasab Bhandari on 6 May 2023.
   • Nepal Death Registration Certificate in the name of Keshab Prasab Bhandari dated 19 May 2023.
   • Patient health summary in the name of the applicant dated 29 November 2023.
   • Referral letter in relation to the applicant from MyHealth Medical Centre dated 29 November 2023.
   • Tax invoice and receipt from MyHealth Medical Paramatta dated 24 November 2023.
   • Prescription for medication in the name of the applicant dated 24 November 2023; and photo of Lexapro medication package.
   • Medical certificate from MyHealth Medical Centre dated 14 March 2025.
6. The Tribunal also considered the evidence the applicant submitted in response to the Notice of Intention to Consider Cancellation (the Notice) as outlined in the Department's decision record.
7. 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 20 March to 6 November 2023. The Department sent the applicant a Notice of Intention to Consider Cancellation on 13 November 2023. The notice gave he applicant an opportunity to provide reasons why her visa should not be cancelled.
4. The applicant responded to the Notice on 30 November 2023. In the response the applicant stated she had been suffering from anxiety which was exacerbated by COVID-19, losing her job and work restrictions. It was submitted the applicant's mental health worsened in 2022 and she suffered panic attacks. The applicant travelled to Nepal in April 2022 and that year her father passed away from an accident. She was prescribed medication by her GP and was given a referral to services. The Department considered the applicant's response and submissions but found as she had not complied with visa conditions and the decision was made to cancel her visa on 1 December 2023.
5. At the Tribunal hearing, the applicant gave evidence about her study history in Australia. She confirmed her claim to the Department that during the period when she was not enrolled she was suffering from depression and anxiety, and her father passed away. The applicant did not deny that she did not maintain enrolment during the period identified by the Department.
6. Based on the information available, the Tribunal is satisfied the applicant did not comply with condition 8202 attached to her 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 advised she came to Australia as a student on 1 July 2016 to undertake studies in accounting. The applicant was enrolled in an Advanced Diploma of Accounting which was completed before she moved to childcare related courses. On the evidence before it, the Tribunal finds the applicant's original travel to and stay in Australia was for study purposes.
3. Regarding a compelling need to remain in Australia, the applicant stated at the hearing that she wants to finish a degree course in childcare. It was submitted it would be difficult to return to Nepal without obtaining a Bachelor of Early Childhood Education because she wants to work in the childcare sector in Nepal and hopes to eventually establish her own childcare centre. The Tribunal considered the submissions but notes the applicant has completed two courses in childcare while in Australia and has work experience in the field. The applicant did not provide a satisfactory explanation why she needs to complete a Bachelor of Early Childhood Education to be able to pursue her stated aims in her home country. The Tribunal understands the applicant may still wish to study in Australia but is not satisfied she has demonstrated a compelling need to remain.
   • the extent of compliance with visa conditions
4. The applicant was not enrolled as a student for 7 months and 17 days, from 20 March to 6 November 2023 which was a breach of condition 8202 attached to her visa. The Tribunal finds the period of time when the applicant did not comply with condition 8202 was considerable, amounting to most of an academic year. There is no evidence before the Tribunal that the applicant failed to comply with any other visa conditions, however, enrolment in a course of study is a fundamental requirement for student visa holders, as well as being the purpose of the visa grant.
   • degree of hardship that may be caused (financial, psychological, emotional, or other hardship)
5. In her evidence the applicant claims cancellation of her visa would cause significant financially and emotional hardship and would impede her education and career in future. The representative advised the Tribunal the applicant's family have made a substantial financial investment in her education, for her to return to Nepal without completed qualifications would undermine her future prospects. The representative stated in a written submission to the Tribunal of 24 March 2025: "Reinstating her visa would allow her to finish her course and return to Nepal with renewed confidence to pursue a career in the growing childcare sector, thus presenting a fair and just outcome considering her circumstances". The Tribunal agrees that if the applicant's visa is cancelled, she will not be able to continue studying in Australia. It is not accepted that this will lead to significant hardship, but the Tribunal is satisfied the applicant will suffer some degree of hardship if her 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
6. The applicant's visa was cancelled because she remained in Australia as the holder of a Student visa but was not enrolled from 20 March to 6 November 2023 when the Department wrote to her advising of an intention to consider cancellation. The applicant responded to the Department's notice; however, the Department made the decision to cancel the applicant's visa on 1 December 2023.
7. The applicant claimed her failure to maintain enrolment, which resulted in non-compliance with condition 8202, was due to exceptional circumstances beyond her control. It was said to be as a result of long-standing mental health issues which became significantly worse during the COVID-19 pandemic. It was claimed the applicant's mental health affected her ability to focus on her studies and was further exacerbated by the loss of her father in 2023 during her return trip to Nepal. In her evidence at the hearing the applicant stated she was suffering from anxiety and depression during the relevant period. She said she was used to travelling and not being able to during COVID-19 affected her mental health. The applicant said she was advised by her doctor that it would be beneficial to have a trip to her home country. However, while she was visiting, her father suffered an accident and passed away. The applicant was asked why she returned to Australia in those circumstances. The applicant said she came back to study a degree course but stated her main focus was to feel better. The applicant told the Tribunal that when she returned to Australia she was working 20 to 24 hours per week but was struggling. She said she needed to do something, and work was a distraction.
8. The Tribunal considered the applicant's claims and makes the following findings. The Tribunal accepts the applicant would not have been able to return to Nepal during COVID-19, and that it was a difficult time in Australia and worldwide. The Tribunal notes however that COVID-19 restrictions had ended well before the period of non-enrolment that occurred from 20 March to 6 November 2023. Although the applicant claims she was advised by her doctor to visit her home country, Student visa holders must still maintain enrolment in a course of study, unless they arrange for compassionate leave through their education provider. The Tribunal accepts the applicant experienced the loss of her father in Nepal during a home visit. The Tribunal considers that in such circumstances it was open to her to defer her studies and remain in Nepal until she was in a position to continue. The applicant did not have the option to return to Australia but not study as it was a breach of condition 8202.
9. At the Tribunal hearing the applicant stated she continued working on her return to Australia from Nepal in 2023. She said because she was struggling, she found work to be a distraction. While this may have indeed been the case, a Student visa does not allow the visa holder to work and not maintain enrolment. The Tribunal finds that if the applicant could attend her place of employment and work, she could have taken steps to seek advice about her circumstances and avoid continuing to breach condition 8202.
10. It was claimed in the representative's submission that the applicant received email correspondence from the Australian Catholic University (ACU) requesting documents, but she did not receive any follow-up by phone or other direct contact to understand her situation or offer her assistance. It was claimed ACU did not attempt to engage with the applicant personally regarding her failure to complete the enrolment or to explore whether she required support. The Tribunal was not provided with any details about the applicant's enrolment or attempted enrolment at ACU and did not receive any copies of correspondence from them. Therefore, the Tribunal is unable to comment on whether ACU's actions were appropriate. Nevertheless, the onus is on the Student visa holder to ensure they comply with visa conditions.
11. The applicant's representative submitted the Department's decision to cancel the applicant's visa failed to account for the applicant having been prescribed medication for anxiety since September 2022. It was submitted this is evidence that the applicant struggled with her mental health prior to the period of non-compliance with visa conditions. The Tribunal notes the Patient Health Summary dated 29 November 2023 submitted in evidence refers to medication being prescribed from 27 September 2022. The Tribunal accepts the applicant consulted her general practitioner and was prescribed medication as claimed. However, since the applicant experienced mental health issues and was prescribed medication in September 2022, the Tribunal finds she had ample opportunity to defer her studies or make other inquiries or arrangements to avoid breaching the conditions of her student visa. The Tribunal notes the applicant submitted a letter of referral from her medical practitioner Dr Deepa Balathayil addressed "To Whomever it may concern" dated 29 November 2023. The letter thanks the unknown recipient for assessment and management of the applicant, however, the is no evidence the applicant sought any additional treatment for her mental health, other than medication from her general practitioner, before or after the date of the letter.
12. Having assessed the claims and evidence, the Tribunal is not satisfied that the applicant's mental health was so debilitating that she was unable to avoid breaching visa condition 8202, or that the circumstances in which the ground for cancellation arose 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 failure to seek advice or notify the Department of any reason she 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 her 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
19. There are no other relevant matters.

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: Mr Jaya Prakash Oli (MARN: 1570827)