The applicant first arrived in Australia on a Student visa in February 2019 that ceased in March 2022 (the first student visa). The Department of Education records that, while he held that visa, the applicant completed a Certificate IV in Commercial Cookery and a Diploma of Hospitality Management from September 2019 to July 2021. He was then enrolled in a Bachelor of Hospitality Management starting July 2021 with an expected end date of July 2023. However, the education provider cancelled the enrolment in April 2022 because the applicant notified it that he had ceased studying.
As noted above, the Department granted the applicant the visa relevant to this decision in December 2022. The Department of Education's records show he was enrolled at that time in a three year Bachelor of Business starting September 2022. However, the education provider cancelled the course in May 2023 for non-payment of fees.
The Department issued a notice of intention to consider cancelling the visa on 28 February 2024 because he was not enrolled from May 2023 to the date of the notice. The applicant responded the following week and confirmed he was not enrolled for the period specified in the notice and advised, among other things, that he was unable to pay his course fees because his father, who had been meeting his education costs, had died in October 2022 after an illness of a year and a half. The applicant supported this evidence with medical reports and a death certificate.
In the reasons for decision, the delegate states they found the applicant had not been enrolled for such a lengthy period that the purpose of his stay in Australia at that time was not study; that the extent of the applicant's failure to comply with a fundamental condition of the visa was significant; and that the applicant's personal and financial circumstances did not excuse or explain that failure. They found these matters outweighed any other matters and that the visa should be cancelled in the applicant's circumstances.
At hearing, the applicant told the Tribunal his father had sponsored his studies and financed them from his small business installing solar panels. He said his father became unexpectedly ill in 2021 and had memory problems and other signs of a neurological condition. He said he could no longer work and the business shut down soon after as it could not operate without him. The applicant said he was distressed because he could not return home because of COVID restrictions. He also needed to continue to work in Australia to help with medical expenses because his younger brother was still at school and his mother was meeting their living expenses from the family's savings.
The applicant said he had started study toward the Bachelor of Business in in September 2022 when his father died in October 2022. He said he had died from lung failure unrelated to his neurological condition and the death was unexpected and affected his mental health. Nevertheless, he remained in Australia and completed a three month semester before the Department granted the visa in December 2022. He told the Tribunal he passed all units but recalls crying throughout one exam and is unable to remember what he wrote in the paper.
The applicant said it was distressing to stay in Australia because he had particular responsibilities as the oldest son. However, he said his mother asked him not to return because he was contributing to the family's living expenses from his part-time earnings. He said he continued to study in the next trimester but did not complete the requirements and could not pay his fees. As noted, his enrolment was then cancelled in May 2023.
The applicant said that things had been very difficult while his father was ill as the family had been totally dependent on him for guidance and support and that none of them had knowledge or understanding of the family finances. He said COVID made it more difficult to get medical attention and, small things, such as getting the applicant to hospital, were difficult because his mother and brother cannot drive. They were all dealing with the difficulty of such an unexpected illness and the expectation that it was degenerative. They expected him to live with a disability and his death from lung failure was unexpected.
The applicant said the family could not meet his education expenses up front when his father's business shut down and he had already arranged to pay fees by instalment. The applicant said he did not approach the education provider for help with the payment of his fees because he believed there was nothing further it could do for him.
The applicant said he became very depressed and anxious after the death of his father. He told the Tribunal he knew he was putting his visa at risk when his enrolment ended but could not think about the consequences. When asked by the Tribunal, he said he did not seek help from the education provider for his mental health problems because it was difficult for him to talk about this it and because, in his view, this is not consistent with the cultural norms for a man in his home country. He said the cultural expectation is that a person should deal with such things themselves. He said that he had previously relied on his father for any kind of support and did not know what to do when this was no longer available.
The applicant told the Tribunal that he has not worked or studied since the visa was cancelled because of his bridging visa conditions. He said he wants to return to study and complete a degree and is motivated by his father's wishes. He told the Tribunal that his mental health has improved with time although he continues to struggle and has panic attacks on occasion. He does not intend to seek professional help but believes he can study successfully with the support of his partner. He also noted that he was able to complete course requirement in late 2022 after his father died despite his mental health challenges.
The Tribunal suggested he might have similar difficulties meeting his education expenses. The applicant said his uncle has agreed to lend him money for his education expenses; that his partner will be working full-time when she finishes study in a few months' time; and his brother will be meeting the family's expenses when he finishes study in mid-2026.
[2]
Compliance with the purpose of the second visa
[3]
Regulation 2.43A(2)(d) requires the Tribunal to consider evidence as to whether the applicant was not complying, or is no longer seeking to comply, with the purpose of the visa. The purpose of the relevant visa in this case is study.
On the applicant's evidence, he was not complying with the purpose of the visa following cancellation of his enrolment in May 2023 for a lengthy period. This would ordinarily weigh heavily in favour of cancelling the visa. However, he said that this was not intentional and 'was all part of the circumstances arising from his father's illness and death'.
The applicant gave evidence at hearing in a straightforward manner that was consistent with documentary evidence provided to the Department and to the Tribunal. It found him to be a credible witness and accepts he was unable to pay for his course fees because of the impact of his father's illness and death on the family finances. The applicant's evidence of mental health issues is not unlikely in those difficult circumstances and his presentation was consistent with a young adult struggling to come to terms with the unexpected death of a loved one. Despite the lack of supporting evidence from a mental health professional, the Tribunal accepts that evidence and, in particular, that it was difficult for him to solve the problem of non-compliance with the visa condition from May 2023. It finds that the lengthy period of stay in Australia for a purpose other than study is explained by his personal circumstances and it does not give it significant weight in favour of cancelling the visa.
[4]
The Tribunal accepts that the applicant travelled to Australia in 2019 for the purpose of study and studied for some years despite the difficulties arising from his father's illness. It has found that he was not seeking to comply with the purpose of the visa from May 2023 but finds this does not weigh in favour of cancelling the visa for the reasons outlined in the previous paragraph.
As noted, the applicant is a credible witness and the Tribunal accepts that he wishes to stay in Australia to complete a Bachelor of Business course. It finds his purpose for his current stay in Australia is study and gives this some weight against cancelling the visa.
[5]
The applicant wishes to remain in Australia to complete that course and submitted that doing so would put him in a better position to pursue a career in business as compared to completing a similar course in his home country. The Tribunal accepts the applicant believes that assertion but has not provided any evidence to support it. The Tribunal is unconvinced of it without such evidence. It gives this no weight against cancelling the visa.
[6]
The extent of compliance with visa conditions and the circumstances in which the breach happened
[7]
The Tribunal finds the extent of the applicant's non-compliance with a fundamental visa condition is significant. However, the breach happened because of the applicant's personal circumstances arising from his father's illness and death. Those personal circumstances were outside his control and they explain and excuse his failure to comply with the visa condition. This weighs heavily against cancelling the visa. The Tribunal has no evidence of breach of other visa conditions.
[8]
The Tribunal accepts that it would cause the applicant distress if he could not meet the family expectations to complete the degree in Australia. However, as noted above, it is not convinced that completion of a degree in Australia would place him at a significant advantage in the labour market in India. It does not give these matters any weight in favour or against cancelling the visa.
[9]
Behaviour of the visa holder towards the Department
[10]
The Tribunal has no evidence of behaviour towards the Department that would weigh in favour or against cancelling the visa.
[11]
Consequential visa cancellations and obligations under relevant international agreements
[12]
The applicant has a partner with her own student visa. Her visa status would not be affected if the visa were cancelled. He did not provide any evidence relevant to Australia's international obligations, including its non-refoulement obligations.
[13]
If the visa is cancelled the Department is likely to grant the applicant a bridging visa for a short period of time to allow him to arrange his affairs before leaving Australia. If he did not leave, he would be in Australia unlawfully and may be detained and involuntarily removed.
The applicant may also be restricted to applying for a limited class of visas under s 48 of the Act and public interest criterion (PIC) 4013 might apply so that he would not be granted a further visa for three years from the date of cancellation. He might also be unable to make a valid application for a visa other than those prescribed in reg 2.12 while onshore.
The Tribunal finds this does not weigh for or against cancelling the visa.
[14]
For completeness, the Tribunal notes there is no evidence of a workplace exploitation matter related to the applicant and, for that reason, the matters listed in Regulation 2.43A(2) are not relevant other than the matter in Reg 2.43A(2)(d) discussed above.
[15]
The Tribunal is satisfied that the applicant's current purpose for his stay in Australia is to study and has found the applicant's failure to study and/or maintain enrolment from May 2023 is explained and excused by his personal circumstances and the financial circumstances of his family. The Tribunal weighs those personal circumstances very heavily against cancelling the visa and finds they outweigh all other matters considered above that might weigh in favour of cancelling the visa, including the applicant's lengthy period of non-compliance with condition 8202 and stay in Australia for a purpose other than study.
In all of the circumstances, the Tribunal concludes that that the visa should not be cancelled and, for that reason, it will set aside the decision to cancel the visa and substitute the decision not to do so.
[16]
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 (Student) visa.
[17]
Representative for the Applicant: Mr Syed Hassan Ali Shah (MARN: 1803878)
(1) The holder must be enrolled in a full time course of study or training if the holder is:
[20]
(a) a Defence student; or
(b) a Foreign Affairs student; or
(c) a secondary exchange student.
[21]
(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.
[22]
(3) A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
[23]
(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.
2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition
[26]
(1) This regulation applies in relation to a visa if:
[27]
(a) the visa is a temporary visa other than:
(i) a criminal justice visa; or
(ii) an enforcement visa; and
(b) the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition) to which the holder's visa is subject; and
(2) For the purposes of paragraph 116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph 116(1)(b) of the Act:
[29]
(a) any written certificate issued by a certifying entity that is a government entity if the certificate:
(i) was issued in relation to the visa holder in respect of a workplace exploitation matter; and
(ii) sets out the matters agreed to by Immigration and the government entity;
(b) any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that:
(i) there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and
(ii) if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter - that time has not expired; and
(iii) there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected;
(c) whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(d) 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;
(e) whether the visa holder has committed, in writing, to do both of the following:
(i) to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(ii) to comply in future with the visa conditions to which the holder's visa is subject;
(f) whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph (e) of this subregulation, or paragraph 2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa.
[30]
(3) Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
[31]
(a) paragraph 116(1)(b) of the Act for non compliance with a condition (other than the relevant condition) to which the visa holder's visa is subject; or
(b) a provision other than paragraph 116(1)(b) of the Act.
[32]
Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.
Legislation Cited (2)
Migration Regulations 1994
Services for Overseas Students Act 2000
Cases Cited (1)
Chouhan (Migration) [2025] ARTA 2113 (26 September 2025)