MIGRATION - cancellation - Student (Temporary) (Class TU) visa - Subclass 500 (Student) - enrolment in a registered course - applicant ceased enrolment - lengthy stay in Australia - family health issues - financial hardship - work experience in Australia - limited academic progress - decision under review affirmed

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

Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; Schedule 8, Condition 8202; r 2.43

1. This is an application for review of a decision dated 30 November 2023 made by a delegate of the Minister to cancel the applicant's Subclass 500 (Student) visa under s 116(1)(b) 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 approximately 9 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.

1. On 31 March 2025 the applicant was invited to appear at a hearing on 11 April 2025. On 6 April 2025 the applicant requested a postponement for time to prepare his case and collect documents. On 7 April 2025 the Tribunal advised the applicant his hearing would not be postponed, and the hearing would go ahead. The applicant was informed that since his visa was cancelled on 30 November 2023, he has had ample time to prepare and obtain any additional evidence.
2. The applicant did not appear at the hearing on 11 April 2025. When contacted by telephone on 14 April 2025 the applicant said he was waiting for a dismissal to give him time to prepare and apply for reinstatement. The Tribunal dismissed the application. On 12 May 2025 the applicant applied for reinstatement of the application for review. The applicant said he wanted to collect medical evidence, but the documents had already been submitted. He requested the hearing in his matter be rescheduled. As the applicant indicated an intention to appear at a hearing and give evidence, the Tribunal agreed to reinstate his application.
3. The applicant submitted a response to the Department's Notice of Intention to Consider Cancellation (NOICC) which the Tribunal has taken into account in its decision. No further documentary evidence was submitted to the Tribunal prior to the hearing.
4. The applicant appeared before the Tribunal on 22 May 2025 to give evidence and present arguments.
5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's visa should be affirmed.

1. Under s 116(1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that a visa holder has not complied with a condition of the visa. However, the Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
2. There are currently no prescribed circumstances under s 116(2) requiring the visa not be cancelled, or under s 116(3) requiring the visa to be cancelled, that apply.
3. The issue in the present case is whether the applicant, as the holder of a student visa, had been in breach of condition 8202 of Schedule 8 the Regulations. If satisfied the applicant has breached condition 8202, the decision maker must proceed to consider whether the visa should be cancelled under s 116(1)(b). In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and reg 2.43A, and other matters of government policy.

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 Student visa was cancelled on the basis the applicant was not enrolled in a full-time registered course. The applicant was not enrolled from 31 January 2023 to 10 November 2023.
3. The applicant did not deny he was not enrolled during the period identified by the Department. He acknowledged his enrolment had been cancelled for non-payment of fees. The applicant claimed his mother suffered ill health and as a result, his family were unable to provide support. The applicant advised the Tribunal he had continued working part-time during 2023. He claimed he had attempted to re-enrol but was not offered credit for past units of study.
4. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

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. 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. The prescribed matters are set out in the attachment to this decision.
2. There is no evidence before the Tribunal to indicate the applicant is or had been the subject of a workplace exploitation matter. The Tribunal did not receive 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; or 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
3. 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 visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
4. The applicant arrived in Australia as a student on 30 March 2013 to undertake a Bachelor of Business (Accounting). The applicant was enrolled in the degree course and completed units of study, however, he discontinued accounting and enrolled in vocational courses. On the evidence before it, the Tribunal finds the applicant's original travel to and stay in Australia was for study purposes.
5. In response to the question of whether he has a compelling need to remain in Australia, the applicant reported he has spent 12 years pursuing studies and a career which included changing from accounting to carpentry. He advised he started working part-time in construction in 2017, began an apprenticeship and enrolled in a Certificate III in Carpentry. The applicant declared he wants to return home with Australian values, work experience and academics. According to the applicant he has studied more than half his course here, and it would be difficult if he goes back to Pakistan with work experience in construction but no academics.
6. The Tribunal understands the applicant may still wish to study in Australia but is not satisfied he has demonstrated a compelling need to remain.
   • the extent of compliance with visa conditions
7. The applicant held a Student visa that was granted on 16 December 2022 but was not enrolled as a student for more than 9 months, which was a breach of condition 8202 attached to the visa. The applicant provided details of his mother's illness as a reason why he was not enrolled. While this may have contributed to financial difficulties for the applicant, he had the option of returning home to Pakistan during 2023 when he claims he was unable to study. The Tribunal considers the period of time when he did not comply with condition 8202 was considerable and without satisfactory explanation. The applicant was no longer enrolled less than two months after being granted the Student visa. The Tribunal considered the extent of the applicant's failure to comply with visa conditions to be significant.
   • degree of hardship that may be caused (financial, psychological, emotional, or other hardship)
8. Regarding any hardship that would result from visa cancellation, the applicant stated at the Tribunal hearing that he would have to rebuild his career from scratch which he cannot afford to do at age 32. It was put to him that he has gained valuable work experience and some qualifications while in Australia. The applicant said in Pakistan construction is done differently and a carpentry certificate would not be enough, without building and construction as well. When asked about Australia specific qualifications, the applicant said if he completes a building and construction course in Australia he could use his qualifications anywhere and it is a broader qualification than carpentry which is one part of the process.
9. The Tribunal considers that the applicant has achieved a level of competence and experience as a builder/carpenter due to his time and experience in Australia. Nevertheless, the Tribunal is satisfied the applicant will suffer a degree of hardship if his 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
10. The applicant's visa was cancelled because he remained in Australia as the holder of a Student visa but was not enrolled from 31 January 2023 to 10 November 2023. The Department wrote to him advising of an intention to consider cancellation on 10 November 2023 and the applicant responded to the Department's notice; however, the delegate made the decision to cancel the applicant's visa on 30 November 2023.
11. The applicant's evidence at the hearing about his circumstances was as follows. He came to Australia on 30 March 2013 to study a Bachelor of Business (Accounting) and completed an English course followed by 14 units out of 24 in the degree course. He reapplied for a Student visa to finish his studies, however, the applicant said he had difficulty learning Australian business law. He decided to change to "business leadership" after discussing it with his education provider.
12. The applicant said he was granted a further Student visa in 2017 to continue studying a bachelor's degree but then COVID-19 happened. He claimed during COVID he was enrolled but could not study. He was working part-time in construction and undertaking a carpentry apprenticeship. The applicant said he developed an interest in taking carpentry full-time. He decided to study what he was doing in the apprenticeship, so he enrolled in a Certificate III in Carpentry.
13. According to the applicant in 2023 his mother was sick, and his COE was cancelled due to non-payment of fees. He provided his reasons to the Department, that he could not pay course fees, but his visa was cancelled. The applicant stated he was intending to enrol in a building and construction course because he has been working in the field for five or six years and wanted the academic qualification. He said he still wants to study because he has spent time and effort building a career and was unable to complete an accountancy degree. The applicant said he needs a visa to complete units in carpentry and finish a building and construction course.
14. The applicant advised he provided evidence of his mother's health issue to the Department. It was claimed that during 2023 his family were unable to continue supporting him. As a result, he could not pay fees and his enrolment was cancelled. He said he explained to the college, but it was not accepted. It was put to the applicant that he must have been aware he could not remain without enrolment for a year while holding a Student visa. The applicant said he did not expect it to lead to the eventual outcome.
15. The applicant submitted that prior to the Department sending him a NOICC, his visa was going to expire in a few months. He asked the Department to consider hardship and allow him to pay the fees and continue studying. The applicant stated he remained in Australia in 2023 because he was enrolled in a carpentry apprenticeship and wanted to continue his work experience. He said the qualifications from Australia would give him an advantage in future.
16. In his response to the Department's NOICC letter, the applicant advised that in December 2022 his mother in Pakistan suffered a heart condition and was admitted to hospital. The applicant claimed his mother underwent surgery in October 2023 and has since recovered. According to the applicant he intended to complete his studies but faced "uncontrolled circumstances and [a] dire situation" and as a result, had not been able to keep up with his studies. The applicant submitted a medical discharge certificate from Siddique Sadiq Memorial Trust Hospital in relation to Ismat Riaz, a discharge summary (surgery) from Hameed Latif Hospital and medical and laboratory reports. He also provided a print out of outstanding fees in relation to his Certificate III in Carpentry course.
17. The Tribunal considered the applicant's submissions including his mother's ill health. The Tribunal understands the applicant may have faced some challenges as a Student visa holder but is not satisfied his claims account for the period of non-enrolment, in breach of visa conditions. Visa holders are required to have the necessary funds to pay for their studies and it is their responsibility to maintain enrolment. If the applicant was unable to pay course fees for personal or family reasons, it was open to him to defer his studies and return to Pakistan until he was in a position to continue studying. He did not have the option of continuing to work but not study. The applicant could have contacted the Department to investigate other visa options more suitable to his circumstances or sought advice from a migration agent. According to the applicant's evidence he did not take any of these steps but continued working in the building and construction trade. The applicant claimed he investigated re-enrolling during 2023 but did not provide any evidence of having done so.
18. Having assessed the claims and evidence, the Tribunal accepts the applicant's mother experienced a medical condition in Pakistan and received treatment. The Tribunal is not satisfied the circumstances in which the ground for visa cancellation arose, that being non-payment of fees, account for the period of non-compliance, or that he experienced circumstances beyond his control.
    • past and present behaviour of the visa holder towards the department
19. The applicant agreed he did not contact the Department about his circumstances during 2023 when he was not enrolled in a course of study. He claimed he was "fully engaged with the college" but accepts he should have been in touch with the Department. He alleged he was given advice that it would be best to convince the education provider to grant him an extension of time to pay fees and the applicant said he felt confident taking that approach. The Tribunal put to the applicant that since he was not enrolled from January to November 2023 he had ample opportunity to seek advice or rectify his situation. It was explained that he did not have the option of remaining in Australia and working but not studying, while holding a Student visa. The applicant said he accepts he was careless but repeated he did not anticipate this outcome. The applicant confirmed he was working part-time during 2023 when he was not enrolled. He said he contacted colleges, but he was not being offered credit for subjects he had completed.
20. 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 past behaviour towards the Department, including his failure to seek advice or notify the Department of any reason he was unable to study, has been appropriate.
    • whether there would be consequential cancellations under s.140
21. 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
22. The cancellation of the visa means the applicant would be subject to s.48 of the Migration Act which would limit his 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
23. 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 the student visa.
24. 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
25. The Subclass 500 Student Visa is not a permanent visa.
    • any other relevant matters
26. 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 Class TU visa.

ATTACHMENT - Extract from Schedule 8 to the Migration Regulations 1994 (Cth)

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.

(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.

ATTACHMENT - Extract from reg 2.43A to the Migration Regulations 1994 (Cth)

2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition

(1) This regulation applies in relation to a visa if:

(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

(c) regulation 2.43B does not apply in relation to the visa.

(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:

(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.

(3) Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:

(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.

Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.