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 power to cancel the visa should be exercised.

1. The applicant is a single 27-year-old single male citizen of Nepal with no children.
2. The applicant first arrived in Australia on a subclass 500 Student visa on 1 September 2016 valid to 7 June 2020. He was granted a further Student visa onshore to 19 November 2021 and again on 23 December 2022 valid to 7 September 2024.
3. In response to the NOICC, in addition to submitting COEs to study a Certificate IV in Kitchen Management and Diploma of Hospitaltity, the applicant submitted that he has made many mistakes and errors in the past and has lapsed in his study. He referred to his parent's having an accident and being hospitalised with fractures and that all his effort was taken and he did not focus on the requirements of the law. He requested the Department allow him to continue to study.
4. In a pre-hearing submission, the applicant's representative submitted that the education provider failed to accurately monitor the applicant's progress or attendance. He accepted at hearing that notwithstanding the applicant's enrolment in the Certificate IV in Kitchen Management should have been cancelled but rather for non-payment of fees, not unsatisfactory course progress. At hearing the applicant said the provider cancelled on that basis once he could not pay the fees. He said if he could have paid the fees his COE would not have been cancelled.
5. Also submitted was evidence that on 30 March 2025 the applicant completed the Certificate IV In Kitchen Management.
6. At hearing the Tribunal discussed with the applicant his study history, reasons that led to his non-enrolment, why he was not enrolled in the relevant period and the discretionary criteria. It also raised with him via s 359A adverse information as contained in the PRISMS record including his poor course progression prior to the period of non-enrolment.
7. Following the hearing he provided the following:
   • Three requests for payment of funds in the sum of $2,334 by the provider in February, March and April 2023.
   • Email dated 16 May 2023 advising him to pay $2,584 and that he has been warned on 6 February and 16 February 2023 to pay the fees otherwise his enrolment will be cancelled.
   • Email dated 30 January 2023 asking him to upload further documents.
   • Medical records and photographs regarding injuries to his father's leg and face following a road accident on 9 January 2023.
   • Letter dated 18 June 2025 from his current education provider indicating he is currently enrolled in the Diploma of Hospitality Management and will complete the course on 28 September 2025.
   • Evidence the applicant completed 10 units towards the Certificate IV in Business dated 15 September 2017.
   • His Vocational Education and Training Transcript indicating units completed.
   • Photos of the applicant cooking and evidence of him previously studying a Certificate Iv Kitchen Management at Sydney City College of Management.
8. Where relevant his evidence is considered below.

1. For temporary visas other than criminal justice and enforcement visas, there are prescribed matters to which the decision-maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations.

Any written certificate issued by a certifying government entity in relation to the visa holder in respect of a workplace exploitation matter which sets out the matters agreed to by Immigration and the entity

1. There is no evidence of a written certificate issued by a certifying government entity in relation to the applicant in respect of a workplace exploitation matter.

Any written certificate issued by a certifying non-government entity that states there is prima facie evidence the visa holder has been affected by a workplace exploitation matter, time has not expired for a proceeding to be instituted or a complaint made, and there is a connection between the breach and the workplace exploitation matter

1. There is no evidence of a written certificate issued by a certifying non-government entity that states there is prima facie evidence the applicant has been affected by a workplace exploitation matter.

Whether there is a connection between the circumstances relating to the breach and the workplace exploitation matter to which a certificate relates

1. There is no evidence of a certificate relating to a workplace exploitation matter or other evidence of any workplace exploitation matter relating to the applicant.

Whether the visa holder has committed, in writing, to take timely action to resolve the workplace exploitation matter to which a certificate relates and to comply with visa conditions in the future, or has failed to comply with a similar previous commitment.

1. There is no evidence of a certificate relating to a workplace exploitation matter or other evidence of any workplace exploitation matter relating to the applicant.

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.

1. The evidence indicates that the applicant was not complying with the purpose of the visa when he was not enrolled and studying from 21 February 2023 to 2 November 2023 a period of over ten months, while the holder of a Student visa. He has given reasons as to why he did not comply with the purpose of the visa. It has considered the reasons for his lack of study below and does not accept he was in Australia for the purpose of the visa in this period of non-study while the holder of a Student visa. The requirement to be enrolled in a course of study in condition 8202(2) goes to this core purpose of the visa. The Tribunal places weight on evidence of the duration of the applicant's non-compliance with this condition. The Tribunal gives this factor weight in favour of the exercise of its discretion to cancel the visa.
2. The evidence indicates that since 3 November 2023 the applicant has been enrolled in the Certificate IV in Kitchen Management to 30 March 2025, which he has successfully completed. He is currently enrolled and studying the Diploma of Hospitaltity Management. He began the course on 31 March 2025 and has indicated he will complete the course on 28 September 2025.
3. The Tribunal accepts he is seeking to comply with the purpose of the visa. The Tribunal gives this weight against cancelling the visa.

1. Beyond the matters prescribed under reg 2.43A, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department's policy guidelines 'General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)', which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

The purpose of the applicant's travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia

1. The purpose of the visa grant was for the applicant to travel to and stay in Australia and study.
2. The applicant first arrived in Australia on a subclass 500 Student Visa on 1 September 2016 valid to 7 June 2020. While holding this visa he successfully completed a Certificate Iv in Business and Diploma of Business to 8 January 2019. At hearing he confirmed he completed the Diploma of Business on 8 Janaury 2019. He then completed some units towards the Certificate IV in commercial Cookery before enrolment was cancelled on 3 December 2020.
3. The Tribunal accepts that his travel and initial stay in Australia was for the purpose of study to 3 December 2020.
4. He was then granted a further Student visa onshore to 19 November 2021 and again on 23 December 2022 valid to 7 September 2024. The latter was cancelled by the Department on 14 November 2023 but he was allowed to continue studying on the Bridging visa.
5. As raised with the applicant via s 359A from 3 December 2020 until he enrolled in the Certificate IV in Kitchen Management and Diploma of Hospitaltity on 3 November 2023 the applicant's course progression and lack of enrolment indicates he was not in Australia for the purpose of study. Specifically, in this period:
   • He was not enrolled in a course of study from 3 December 2020 to 15 November 2021.
   • His enrolment in the Certificate IV in Kitchen Management was cancelled on 21 February 2023. While as raised with him that the PRISMS record indicates his enrolment was cancelled for unsatisfactory course progress following submissions from the representative and applicant it accepts it should have been cancelled for non-payment of fees. It accepts the applicant was not advised he was not achieving course progress as required.
   • He was not enrolled in a course of study from 21 February 2023 until 2 November 2023.
6. When raised with him he referred to Covid and not being able to attend college. He also referred to having to study online. He said there was much pressure. While the Tribunal accepts this would have caused difficulties in 2020; it does not accept it explains his lack of course progression and enrolment from 2021.
7. As to why his enrolment was cancelled, he referred to his parents' road accident in Nepal in Janaury 2023 where his father suffered multiple fractures to his leg and his mother suffered lacerations. He referred to the mental stress he faced as a result, particularly as he is the only son. He also said that as they were injured, he could not afford the fees as they were assisting him. Of concern is his evidence that he never advised the education provider nor sought compelling or compassionate reasons to defer his enrolment. The Tribunal would expect this to be the case if his parents' accident mentally and financially affected him to the extent he could not study. His evidence was also that he did not seek medical help for his mental stress. Similarly, the Tribunal is of the view if he was in Australia to study and he was so mentally distressed and /or affected that he could not study he would seek medical or psychological help.
8. Added to this was his evidence that up until his visa was cancelled and a no work condition was placed on it, he was working in a kitchen as a chef except for the 4 to 5 months when the restaurant was closed due to lockdown from around March 2020. When the Tribunal raised with him that it may expect if he was able to work; he would be able to enrol, study and achieve course progression; he then said he was not working that much. The representative said that working is a physical thing and is different to study. The Tribunal is of the view if the applicant's purpose was to be in Australia to study, that if he was able to work, he would enrol and achieve course progress.
9. The Tribunal therefore dos does not accept that from 3 December 2020 to when he enrolled in the Certificate IV in Kitchen Management on 3 November 2023 his purpose of being in Australia was to study. This is significant, particularly being a period of nearly 3 years. The Tribunal places much weight on this in favour of exercising its discretion to cancel the visa.
10. As to whether there is a compelling need for him to stay in Australia, he referred to wishing to finish the Diploma of Hospitality, which he will complete in September 2025. He said he wants to finish the course and return to Nepal to open a restaurant. His evidence is he worked in Australia for many years as a Chef until a no work condition was placed on his Bridging visa. He said his father would finance the restaurant. While there are similar courses in Nepal, he referred to being part-way through the current course and having paid over $10,000 for both courses. He also referred to the similar courses in Nepal not being as good or giving him the same opportunities when completed. As the applicant has only three months to continue studying the courses he began in November 2023 it places weight on this. It accepts there is a compelling need for him to stay and finish the current course. The Tribunal considers that this factor weighs against cancelling the visa.

1. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his Student visa. While the PRISMS record indicates his enrolment on 21 February 2023 was cancelled for unsatisfactory course progress; it has accepted that rather it should have been cancelled for non-payment of fees.
2. The Tribunal gives this factor neutral weight.

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

1. At hearing the applicant referred to wanting to complete the Diploma of Hospitaltity and the hardship which would be caused if he was unable to complete this course and return to Nepal. He said he could go back and study in Nepal but the education would not be as good, nor would he gain the benefits of an Australian education. He said he would have to start the course again; and there would be financial hardship from having already paid fees.
2. The Tribunal gives this weight against cancelling the visa.

Circumstances in which the ground of cancellation arose

1. The ground for cancellation arose as a result of the applicant's breach of condition 8202, as he was not enrolled in a course of study from 21 February 2023 to 2 November 2023.
2. The Tribunal has considered his evidence above, that the mental and financial effects due to his parent's accident resulted him in being unable to study. It has rejected these as reasons for his lack of enrolment in the relevant period and found rather that his purpose of being in Australia was not to study. While his parent's accident was beyond his control it does not accept this, and its effects, were the reasons he was not enrolled. Rather it was as his purpose at that time of being in Australia was not to study.
3. Therefore, the Tribunal gives this neutral weight.

Past and present behaviour of the visa holder toward the Department

1. There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past.
2. The Tribunal gives this consideration neutral weight.

Whether there would be any consequential cancellations under s 140

1. The applicant is single with no children. There is no evidence that any other person's visa would or may be cancelled if the applicant's visa was cancelled. The Tribunal gives this factor neutral weight.

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

1. There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
2. If the visa remains cancelled the applicant would likely be granted a Bridging visa for a short period of time to allow him to finalise his affairs before returning to Nepal. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
3. If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under public interest criterion (PIC) 4013 he also may in some cases not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant's future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore.
4. There is no restriction on the visa he can apply for once he leaves Australia.
5. The Tribunal gives this consideration neutral weight.

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

1. 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. At hearing the applicant said he did not fear return and had no refugee type concerns returning to Nepal.
2. 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.
3. The Tribunal gives this consideration neutral weight.

1. This is a difficult case to decide. The applicant's study record prior to the cancellation of the visa by the Department was extremely poor and for almost three years he did not achieve any course progress and in two significant periods was not enrolled in a course. The circumstances that led to his non-enrolment in the relevant period were not beyond his control. However, the applicant has only 3 months to complete a package of courses he has been enrolled in since 3 November 2023. He has successfully completed the Certificate IV in Kitchen Management which relates to his past employment as a Chef. As he only has three moths to finish the current course, considering the benefits of an Australian education on his future; it places much weight on his need to remain in Australia to finish the course.
2. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.

1. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 (Student) visa.

Representative for the Applicant: Mr Hem Raj Bhatta

Migration Regulations 1994

1. (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.