1. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant meets PIC 4013 as required by cl.500.217.
2. Clause 500.217 of Schedule 2 to the Regulations provides that:

(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4010, 4013, 4014, 4020 and 4021.

(2) If the applicant has not turned 18, public interest criteria 4012A, 4017 and 4018 are satisfied in relation to the applicant.

(3) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.

(4) The applicant (other than a Foreign Affairs student or a Defence Student) satisfies public interest criterion 4005.

(5) The applicant, being a Foreign Affairs student or a Defence Student, satisfies public interest criterion 4007.

1. Clause 4013 of the PIC set out in Schedule 4 to the Regulations states:

(1) If the applicant is affected by a risk factor mentioned in subclause (1A), (2), (2A) or (3):

(a) the application is made more than 3 years after the cancellation of the visa or the determination of the Minister, as the case may be, referred to in the subclause that relates to the applicant; or

(b) the Minister is satisfied that, in the particular case:

(i) compelling circumstances that affect the interests of Australia; or

(ii) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen;

justify the granting of the visa within 3 years after the cancellation or determination.

(2) A person is affected by a risk factor if a visa previously held by the person was cancelled under section 116, 128 or 133C of the Act:

(a) because the person was found by Immigration to have worked without authority; or

(b) if the visa was of a subclass specified in Part 2 of this Schedule - because the person did not comply with a condition specified in that Part in relation to that subclass; or

(c) if the visa was a Subclass 773 (Border) visa and, at the time of grant of the visa, the person was apparently eligible for a substantive visa of a subclass specified in Part 2 of this Schedule - because the person did not comply with a condition specified in that Part in relation to that subclass of substantive visa; or

(ca) because the person held a student visa and the Minister was satisfied that a ground mentioned in paragraph 116(1)(fa) of the Act applied to the person; or

(d) because the Minister was satisfied that a ground prescribed by paragraph 2.43(1)(ea), (i), (ia), (j), (k), (ka), (kb), (m),(o), (oa) or (ob) applied to the person.

1. In this case the applicant's Subclass 500 Student visa previously held by the applicant was cancelled under s.116 of the Act on 9 November 2023 because the applicant did not comply with condition 8202 and the delegate exercised their power to cancel the visa.
2. The applicant at hearing did not dispute that he was affected by this risk factor as his previous Subclass 500 Student visa was cancelled under s116 as he failed to comply with a condition of that visa. The applicant is as a result affected by the risk factor mentioned in PIC 4013(2)(b).
3. As the applicant is affected by a risk factor for PIC 4013, the Tribunal must consider whether the applicant satisfies PIC 4013(1)(a) or (b).

Was the present visa application made more than 3 years after the cancellation?

1. If an applicant is affected by a risk factor, PIC 4013 can be satisfied if the visa application was made more than 3 years after the cancellation in question (PIC 4013(1)(a)).
2. The applicant lodged his present visa application for a Subclass 500 Student visa on 31 October 2023. As the visa application was not made more than 3 years after the cancellation of the visa in question, the applicant does not satisfy PIC 4013(1)(a).

Are their compelling or compassionate circumstances as outlined in 4013(1)(b)?

1. If an applicant is affected by a risk factor, PIC 4013 can be satisfied if there are compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justify the granting of the visa within 3 years after the cancellation determination[2].
2. Generally, having regard to the ordinary meaning of those words, 'compassionate' can be defined in the dictionary as 'circumstances that invoke sympathy or pity' where as 'compelling' (to compel) may include 'to urge irresistibly' and to 'bring about moral necessity'.[3]
3. Whether there exist compelling circumstances that affect the interests of Australia, or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen is a question of fact and degree for the Tribunal.
4. Departmental Guidelines also suggest circumstances that may be regarded as compelling circumstances that affect the interests of Australia , or compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen.[4] While not binding, the Tribunal may have regard to the Department's interpretation and examples of what may constitute compelling or compassionate circumstances.[5]

Compelling circumstances that affect the interests of Australia

1. Departmental guidelines suggest such circumstances may exist if:
   • Australia's trade or business opportunities would be adversely affected were the person not granted the visa;
   • Australia's relationship with a foreign government would be damaged were the person not granted the visa; or
   • Australia would miss out on a significant benefit that the person could contribute to Australia's business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa. [6]
2. Departmental guidelines state that compelling circumstances affecting the interests of Australia would not include circumstances if the non-citizen merely claims that, if granted the visa, they would:
   • work and pay taxes;
   • pay fees to an education provider; or
   • spend money in Australia.[7]
3. The Departmental guidelines indicate that compelling circumstances may arise where the exclusion period has arisen from either a departmental error or as an unintended consequence of the exclusion provisions. The guidelines states that exclusion provisions may be regarded as having an unintended effect if the person previously made every effort to leave Australia whilst a lawful non-citizen (eg. while holding a bridging visa) but did not leave before the visa ceased due to factors beyond their control, such as:
   • health issues;
   • unavoidable delays by airlines; or
   • delays associated with travel documents; or
   • they were a minor at the time their visa ceased and it can be demonstrate that they were not responsible for their own departure arrangements.[8]
4. Generally, the exclusion provisions should not be regarded as having an unintended effect in cases if, for example:
   • the person claims they inadvertently breached a condition of the Electronic Travel Authority (ETA) because the travel agent failed to inform of the conditions of the ETA; or
   • the person claims the Department wrongly cancelled a previous visa but:
   • although they applied for the cancellation to be revoked or reviewed the decision maker decided not to revoke or set aside the cancellation; or
   • they failed to apply for the cancellation decision to be revoked or reviewed, even though they were able to do so.
5. Further, Departmental policy also states that there may be compelling circumstances affecting the interests of Australia in the case of persons whose last substantive visa was a Student visa and who are applying for a new Student visa. In particular, where the applicant's circumstances, including previous study history in Australia, clearly demonstrate that they have been a genuine student in Australia, and there is no evidence that they have actively or intentionally abused or sought to circumvent immigration laws, decision makers may accept that compelling and compassionate circumstances exist.[9]
6. With respect to their being compelling circumstances affecting the interests of Australia, the Tribunal has considered all the written evidence submitted by the applicant to the Department and Tribunal as well as the applicant's evidence provided at hearing.
7. The applicant's representative has argued that if the visa is not granted or the Tribunal is not satisfied the applicant meets PIC 4013, Australia would miss out on a significant benefit that the applicant could contribute to Australia's business, economic, cultural or other development. He submitted that the Reserve Bank of Australia recently published an article demonstrating that international student's expenditure on tuition and living costs is equivalent to an export and has made a measurable contribution to GDP growth. He submitted that the enrolment of the applicant in a Diploma of Information Technology and Bachelor of Information Technology, two courses he wishes to study, contributes to the Australian economy which advances Australia's economic and skills interest. He also noted that the applicant has demonstrated a genuine commitment to complete his course and has indicated he intends to apply these skills in contributing to the Australian IT industry. He submitted that this aligns with Australia's national interest in developing cyber and IT security capabilities. He also submitted that although the applicant intends to return to Nepal upon completion of his studies, the skills and professional links established during his studies in Australia will contribute to Australia's reputation for high-quality IT education and international collaboration. Refusing the applicant's visa would result in a missed opportunity for Australia's educational and economic interests.
8. The Tribunal acknowledges that students from overseas contribute to the Australian economy, culture and provide other developments in the manner outlined by the applicant's representative and through the skills they obtain from studying, It accepts they can and will offer a contribution on completion of their study and that professional links can be established. However, considering the meaning of compelling as outlined above, the Tribunal is not satisfied that these circumstances described by the applicant and his representative, constitute compelling circumstances affecting the interests of Australia such that it would justify the exercise of the discretion to grant the visa within three years of the cancellation decision.
9. The applicant hs also submitted that there are compelling circumstances affecting the interests of Australia as his last substantive visa was a Student visa and that his circumstances, including previous study history in Australia, clearly demonstrates that he has been a genuine student in Australia. For the reasons that follow, the Tribunal does not accept this to be the case.
10. The applicant was granted his previous Student visa on 18 May 2022 to study a Bachelor of Business Information Systems from 8 November 2021 to 3 March 2024. He ceased enrolment in that course on 24 July 2022 and was not enrolled in any course of study until he obtained a COE to study a Diploma of Information Technology to be studied from 16 October 2023 to 13 April 2025.[10]. His lack of enrolment from 25 July 2022 until 15 October 2023, a period of over 14 months, and course completion while holding the previous Student visa undermines his claim that he has been a genuine student. This is particularly so given the significant time, being over 14 months he was not enrolled in any course of study. Notwithstanding, there may be good reason why a genuine student has been unable to enrol and achieve course completion and enrolment. The Tribunal has considered the reasons raised by the applicant.
11. The applicant has referred to the financial pressure his family suffered due to the Covid pandemic and that the family business was shut down. He claimed he was not able to pay his fees as and discontinued his study as he had no financial support. He lodged a new visa which was granted don 18 May 2022. Then his grandfather died. He submitted his grandfather's death certificate which indicates that he died on 3 July 2022. He noted that as a result his father was not able to focus on his business and this further affected their financial situation back home. He claimed he was still struggling with finances as his parents were unable to send money as they were still struggling and for this reason he could not pay the fees to college and regrettably the College cancelled his COE. He was then able to obtain a COE to enrol in the Diploma of IT from 16 October 2023 but could not continue the course after the visa was cancelled in November 2023 as the Department placed a no study condition on his bridging visa.
12. The Tribunal does not accept he did not achieve course progress, other than completing one unit, and was not enrolled for over 14 months over the lengthy period for these reasons. He provided evidence of working until his visa was cancelled but said he had to send money home as to why he could not financially afford to study. However, this does not explain why he only completed one unit when enrolled in the Bachelor of Business Information Systems from 8 November 2021 to 24 July 2022. Further, while he has claimed he could not enrol and study and achieve course progress in this period due to financial issues, his evidence was that he returned to Nepal from 21 April 2023 to 2 June 2023. When the Tribunal raised as of concern that this undermines his claim that he could not study due to financial issues, the applicant sad the airfare was only $1,200 and much more is required to enrol and study. However, the Tribunal is of the view if he was in Australia to study and could not due to financial issues he would have been focussed saving the money to study rather than spending the money returning to Nepal for the reasons he claims.
13. He also referred to the depression and mental health issues he was suffering at the time as affecting his ability to enrol, study and achieve course progress while holding the previous Student visa. However, the evidence indicates he worked continuously whole holding the previous Student visa until a no work condition was placed on the visa after the cancellation on 9 November 2023. The Tribunal is of the view he was mentally able to work in this period, he would be able to study if his purpose of being in Australia was to study and he was a genuine student. It also notes there is no evidence he sought medical or other assistance in Australia. The Tribunal is of the view if he was in Australia to study and he was a genuine student but was so mentally affected to the extent he could not study, he would have sought some help in Australia. The evidence indicates he did not. He referred to obtaining help when he returned to Nepal for a visit in 2023. However, despite claiming he could provide evidence of such assistance given, none was provided. The Tribunal is of the view, as raised with him at hearing, if such mental assistance was provided by a Doctor or other health professional in Nepal, he would be able to provide documentary evidence. The Tribunal therefore does not accept his evidence explains or excuses why he did not achieve course progress and was not enrolled for over 14 months while holding the previous Student visa. It therefore does not accept he was a geneuein student while holding the previous Student visa.
14. It therefore does not accept that that there are compelling circumstances affecting the interests of Australia as his last substantive visa was a Student visa and that his circumstances, including previous study history in Australia, clearly demonstrates that he has been a genuine student in Australia.
15. In making the above finding it accepts that his grandfather died in 2022 as claimed but does not accept this resulted in the financial difficulties to the business as his father was unable to focus which was the reason that he was unable to achieve course progress and be enrolled while holding the previous Student visa.
16. The Tribunal is not satisfied that his wish to study, obtain a good education and any of the matters he has raised amount to compelling circumstances affecting Australia's interests.

Compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, under policy there may be compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen

1. In assessing if there are compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, under Departmental policy there may be compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen if the applicant was not granted the visa because:

● A business operated by an Australian citizen would have to close down because it lacked the specialist skills required to carry out the business;

● Civil proceedings instigated by an Australian permanent resident would be jeopardised by the absence of the non-citizen witness; or

● An eligible New Zealand citizen would be unable to finalise legal and property matters associated with divorce proceedings without the physical presence of the non‑citizen in Australia.

1. In assessing if there are compassionate circumstances, under policy there may be compassionate circumstances affecting the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen if the person was not granted the visa because:

● Family members in Australia would be left without financial or emotional support;

● Family members in Australia would be unable to properly arrange a relative's funeral in Australia; or

● A parent in Australia would be separated from their child (for example, if the child was removed with their non-resident parent and is therefore subject to an exclusion period).

1. The applicant has referred to the compassionate or compelling circumstances that would affect his two cousins, Seema Ghimire and Subodh who are both Australian citizens. He submitted that they have been providing all types of support to him and his presence is equally important to them. He claimed that they would be devastated if his visa was not granted for his further study and particularly that all their hard work would perish in vain.
2. An email from the applicant's cousin, Seema Ghimie, an Australian citizen, dated 24 May 2024 noted that she and the applicant share a very strong bond and they are like siblings. She claimed that she was overjoyed when her cousin arrived and they were able to relive their earlier memories in Nepal. They provide strong emotional support for each other and especially after the recent birth of her child, the applicant has been very supportive. She noted that as working parents it is very tough to balance life with the arrival of a baby and the applicant's presence has been a huge support. She noted that if the applicant must leave the country and re return it not only affects his future but also affects her and her family directly. She concluded by saying that the applicant's emotional support to her and her family is a huge part of their cultural and family value. She noted in their country family bond is the most important thing and a family member's support is what matters most.
3. The applicant's representative in his submission also referred to the applicant's two cousins in Australia who rely on him for emotional companionship and cultural support given their shared background and limited extended family in Australia. He submitted that the applicant's departure would cause them emotional distress and disrupt their established familial bonds. He also referred to the significant emotional and financial support that the applicant's cousins have invested in the applicant's education and that this would be undermined if he were unable to complete his studies despite their ongoing commitment to success.
4. While the Tribunal accepts the applicant's departure would affect his two cousins in Australia, who are Australian citizens, considering the meaning of compelling and compassionate as outlined above, it does not accept on the evidence provided, especially as both are married therefore having other support, that it reaches the level of compassionate or compelling circumstances that justifies the granting of the visa within 3 years after the cancellation determination.
5. The Tribunal has also considered the hardship and emotional effect on the applicant, his parents and relatives back in Nepal if he returns without a degree and the subsequent shame, devastation and loss of dignity. However, the Tribunal does not consider that these are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen; as part from his two cousins in Australia considered above; his relatives do not fall into this category.
6. It has also considered the effects his lack of study and obtaining IT education would have on an Australian business and its employees but as he is yet to be employed, it views this as speculative and therefore does not accept these are compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident, or an eligible New Zealand citizen that justifies the granting of the visa within 3 years after the cancellation determination.
7. On the evidence before it the Tribunal is not satisfied that there are compelling or compassionate circumstances within the meaning of PIC 4013(1)(b) which justify granting the visa within 3 years after the cancellation of the applicant's previous student visa. Accordingly, the applicant does not satisfy PIC 4013.
8. For the reasons given above, the Tribunal is not satisfied that the applicant meets PIC 4013 for the purposes of cl.500.217 of Schedule 2 to the Regulations. The decision under review is affirmed.

1. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Representative for the Applicant: Mr Komal Khatiwada (MARN: 0853554)

[1] PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the ESOS Act. PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as 'evidence of enrolment' in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.

[3] In Bui v MIMA [1999] FCA 118 (French, North and Merkel JJ, 1 March 1999) in discussing Schedule 3 waivers, the Court held at [47]: 'There may be circumstances of a "compelling" character, not included in the "compassionate" category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be "undue" there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed "compelling circumstances" may properly have a part to play.'

[4] PAM3 - Migration Act - Visa cancellation instructions - Exclusion periods [

[5] Mudiyanselage v MIAC [2012] FMCA 887 where the Court noted it was open for the Tribunal to be guided by Department policy

[6] PAM3 - Migration Act - Visa cancellation instructions - Exclusion periods

[7] PAM3 - Migration Act - Visa cancellation instructions - Exclusion periods

[8] PAM3 - Migration Act - Visa cancellation instructions - Exclusion periods

[9] PAM3 - Migration Act - Visa cancellation instructions - Exclusion periods

[10] The information from the PRISMS record was raised with the applicant at hearing via the process outlined in s 359A