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 23-year-old male citizen of China. He is not married and has no children.
2. The applicant first arrived in Australia on a Subclass 500 Student Visa on 25 Janaury 2023 on a Student visa granted on 22 July 2020 and valid to 15 November 2023.
3. While studying offshore he completed two English courses studied from 3 August 2020 to 5 February 2021. His enrolment in the Foundation Studies course, undertaken at RMIT, began on 1 February 2021 and was cancelled for unsatisfactory course progress on 17 March 2022. He then travelled to Australia on 25 Janaury 2023 and has successfully completed a Diploma of Leadership and Management, studied from 9 Janaury 2023 to 7 January 2024, which he completed early. He then completed an Advanced Diploma of Leadership and Management studied from 9 October 2023 to 6 April 2025. He is currently enrolled in a Graduate Diploma of Management (Learning) studied from 7 July 2025 to 5 July 2026. He provided completion certificates, prior to the Tribunal hearing, confirming his completion of the Diploma and Advanced Diploma of Leadership and Management.
4. The following is a summary of the applicant's submission provided in his response to the NOICC.
   • Despite his two attempts to complete the foundation program online, RMIT did not allow him to enrol further. He found it difficult and challenging to keep up with the school's pace and entered a cycle of falling behind in his studies. He found the units interconnected and when he could not understand a particular lesson this made the subsequent lessons difficult. He overestimated his ability to self-learn online.
   • He spoke to his parents and tried to change schools to a business program with a lower difficulty and that is why he changed to study leadership and management. The new school allowed him to ask questions directly to teachers after class which was a significant advantage.
   • He could not travel to Australia due to the Covid pandemic and he decided to wait until international travel was permitted.
   • It was only after China's relaxation of quarantine policies that he arrived in Australia and he had already enrolled in the business courses.
   • He wanted to study in person because online courses are not highly recognised in China.
   • He has no criminal record and is abiding by Australian laws and regulations.
   • His academic progress is now good.
5. When he applied for review, he provided a statement noting his attempts to contact RMIT after his failure and move to study the leadership and management courses. He claims that the delay in updating his new COEs added to the challenges he encountered. He provided an email from RMIT noting that his application for the foundation program starting from July 2023 was denied.
6. He submitted that unlike his previous experience he is now studying successfully and achieving course progress. He referred to how studying online hindered his access to assistance. He claimed the gap in his study resulted from the negligence of the education provider.
7. Prior to the hearing he provided a new COE to study a Graduate Diploma of Management (Learning) from 7 July 2025 to 5 July 2026.
8. At hearing the Tribunal discussed with him his enrolment and study history, reasons that led to his non-enrolment, why he was not enrolled in the relevant period and the discretionary criteria. It asked him whether there was any other relevant matter the Tribunal should consider or whether he had anything to add. It raised a number of concerns. Where relevant his evidence and the responses to the concerns raised are 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 17 March 2022 to 8 January 2023, a period of over nine months, while the holder of a Student visa.
2. While studying offshore, as he could not travel from China to Australia due to Covid pandemic, he completed two English courses studied from 3 August 2020 to 5 February 2021. The Tribunal accepts his purpose while holding the visa in this period was to study and achieve course progression. He then enrolled in a Foundation course at RMIT but found it difficult and challenging online and as he was studying from offshore. He could not keep up, found the units interconnected and fell behind. While his enrolment was cancelled for unsatisfactory course progress, the Tribunal accepts that the applciant was enrolled, attempting to study but due to the difficulties claimed was unable to achieve course progress. Despite his claim at hearing that he was not enrolled in the relevant period from 17 March 2022 to 8 January 2023 as he was not well advised by RMIT as to his options to change courses and it was difficult to contact them as he was offshore, it places more weight on the contemporaneous evidence given in response to the NOICC, that he decided to wait until international travel was allowed. It is therefore of the view that despite wanting to study he decided to wait until he could travel to Australia when international borders opened so he could achieve course progress. It is of the view that in the period of non-enrolment his purpose was not to study. The requirement to maintain enrolment in a course of study in condition 8202(2) goes to this core purpose of the visa. It applies from the grant of the visa. The Tribunal places weight on the duration of the applicant's non-compliance with this condition. The Tribunal gives this factor weight in favour of exercising its discretion to cancel the visa.
3. At hearing the applicant referred to wanting to continue to study the course he is currently enrolled in. Specifically, the evidence indicates he has successfully completed since 9 January 2023, a Diploma and Advanced Diploma of Leadership and Management. He is currently enrolled in a Graduate Diploma of Management (Learning) which he began on 7 July 2025 and will finish on 5 July 2026. At hearing he was able to describe why he wants to study the Graduate Diploma of Management (Learning) and its value to his future. He indicated he had paid $4,700 in fees to study this course. The Tribunal accepts the applicant is currently enrolled, studying and achieving course progression. It accepts that he will continue to be enrolled, study and finish the Graduate Diploma of Management (Learning). It accepts he is genuinely 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 applicant first arrived in Australia on a Subclass 500 Student Visa on 25 Janaury 2023 on a Student visa granted on 22 July 2020 and valid to 15 November 2023. Since his travel to and stay in Australia he has been enrolled, studying and achieving course progression. He has successfully completed a Diploma of Leadership and Management, studied from 9 Janaury 2023 to 7 January 2024, an Advanced Diploma of Leadership and Management studied from 9 October 2023 to 6 April 2025, and is currently enrolled in a Graduate Diploma of Management (Learning). When asked at hearing as to why he is studying these courses and the value to his future he referred to wishing to return to China with a Bachelor level degree and obtaining a position in management. The Tribunal gives this significant weight against cancelling the visa.
2. As to whether there is a compelling need for him to stay in Australia, he referred to wishing to stay to finish the course he is currently enrolled in, being the Graduate Diploma of Management (Learning). At hearing he referred to previously living and returning to Shanghai and the importance of having a bachelor level degree to obtain a respectable job. He indicated that this course forms part of the package of courses he has previously studied. While there are similar courses in China, he referred to having paid over $4,700 for the current course. He also referred to the similar courses in China not being as good or giving him the same opportunities when completed. The Tribunal 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 evidence indicates his enrolment on 17 Mach 2022 was cancelled for unsatisfactory course progress. The applicant has described the difficulties he faced completing the course offshore. The Tribunal accepts his evidence as to the difficulties he faced.
2. The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his Student visa.
3. The Tribunal gives this low weight in favour of exercising its discretion to cancel the visa.

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

1. At hearing the applicant referred to wanting to complete the Graduate Diploma of Management (Learning) and the hardship which would be caused if he was unable to complete this course and return to China. He referred to the money he had spent to enrol in the course, being $4,700 and the need for a degree equivalent to the bachelor level to obtain good employment on return to China. He said he could go back and study in China but the education would not be as good, nor would he gain the benefits of an Australian education. He referred to the shame and embarrassment of his family if he did not return to China with a bachelor equivalent degree.
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 17 March 2022 to 8 Janaury 2023. The Tribunal accepts the ground for cancellation arose as the applicant was offshore, unable to leave China and enter Australia due to the Covid pandemic adding to the difficulty to successfully compete the foundation course. It accepts his evidence that due to the Covid pandemic he could not travel until Janaury 2023 and that it was better to wait to study until he was in Australia, following the difficulty he had contacting RMIT and the education provider.
2. Therefore, the Tribunal gives this weight against cancelling the visa.

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 were 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 China. 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 were 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 China.
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. The Tribunal has considered all the applicant's circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that weigh in favour of exercising its discretion to cancel the visa. It has considered that his travel and stay in Australia has been for the purpose of study and that he has achieved significant course progression. It has given this significant weight against cancelling the visa. It has accepted that the impact of the Covid pandemic including his inability to arrive in Australia until 25 Janaury 2023 affected his ability to achieve course progress prior to his arrival in Australia. It has considered his evidence that he has paid $4,700 to study the Graduate Diploma of Management (Learning), as well as its relevance and importance to his future and given this weight against cancelling the visa.
2. The Tribunal acknowledges that the breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. However considering all the factors, the applicant's evidence and 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.

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.

[1] According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that 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. It is further noted that 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.

While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments unless there is specific evidence to the contrary in relation to a particular case.