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, has breached 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 applicant's visa was cancelled on the basis the applicant was not enrolled in a full time registered course. She confirmed, both in her written and oral evidence, that she agrees that she did not comply with this visa condition when she failed to maintain her enrolment.
3. On the evidence before the Tribunal, I find the applicant was not enrolled in a full time registered course between January and December 2023. Accordingly, I am satisfied 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, I 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. Beyond the matters prescribed under reg 2.43A, I have 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.
3. I have reviewed and considered the migration agent submissions to the Tribunal, which contend there are "compassionate or compelling health-related factors" which weigh against exercising the discretion to cancel. While commenting on comparable decisions of this Tribunal, I note that the submission do not refer to or engage with either the prescribed matters or the factors set out in policy which decision makers are to have regard to when considering the discretion to cancel.
4. The documentation before me suggests, and I accept, that the applicant underwent appointments and examinations with her doctor and a gynaecologist during 2023 seeking to address symptoms related to irregularities in her menstrual cycle. While the applicant asserted in her written evidence that she was diagnosed with "Polycystic Ovarian Disease (PCOD)" I put to her that the medical documentation she provided did not reflect his diagnosis. The medical certificate provided after the hearing states that she "is having features suggestive polycystic ovarian syndrome" and also refers to possible endometriosis.
5. The applicant's statement also asserts that "Under medical advice, I prioritised treatment and recovery before resuming my academic commitments", however when this was discussed with her, she could not identify or provide evidence of the relevant medical advice she received which suggested deferring her studies on health grounds.
6. What is not apparent from the medical material before me is any insight into the applicant's capacity to either study or manage her personal affairs during 2023. While it appears she underwent ultrasounds in January, April and October 2023, the medical documents do not discuss what her treatment plan was during this time nor how either this or her symptoms impacted her capacity. Her statement indicates that her medical condition significantly impacted both her physical and mental health. However, in our discussion she confirmed to me that she has never sought any diagnosis or professional assistance for any mental health conditions.
7. The applicant could not explain, and it is not apparent to me, why she was unable to take any steps between January and December 2023 to understand and seek to comply with the obligations attached to her visa. She told me, repeatedly, that she did not know what to do in relation to her visa when she became unwell and that she did not understand her visa conditions. However she could not explain why she did not seek to obtain information any guidance on this matter from either her university, a lawyer or migration agent, or the Department of Home Affairs. While I accept that she was unwell, the information before me does not suggest, and I do not accept, that she was so incapacitated that she was unable to make any such inquiries during this period. Noting that she appeared to be navigating the health system by attending appointments and corresponding with medical professionals, it is unclear to me why she was not able to seek guidance from legal professionals in relation to her visa.
8. The circumstances in which the applicant breached her condition, when viewed cumulatively, in my view weigh in favour of exercising the discretion to cancel the visa. The extended period for which she was not enrolled, and that she did not take any steps at all to understand her visa obligations or remedy the breach until after she was contacted by the Department, do not weigh in her favour. While I accept she was engaging with medical professionals during 2023, I do not consider the material provided supports her position that she was not fit to either study or seek to understand and manage her visa obligations during this period.
9. It is apparent that she was not enrolled in a registered course of study for almost all of 2023. Like the delegate, I have concerns that the applicant only decided to re-enrol after she was contacted about possible cancellation of her visa. However since the delegate made her decision I note that the applicant has made considerable progress in her course of study, and documentation from her education provider confirms that she is due to graduate in late 2025.
10. Material before the Tribunal indicates that she is now enrolled in and has almost completed a Masters in Public Health. This is the course she was granted her visa to complete. She has completed 14 units in this course and has 2 remaining. The applicant indicated she expects to graduate in December 2025. I consider this is strong and highly persuasive evidence to indicate that applicant is, and will continue to, comply with the purpose of the visa. It is also suggestive of her purpose for seeking to travel to and remain in Australia is to undertake a Masters in Public Health. I consider that were the applicant unable to remain in Australia to complete her Masters, she would endure considerable hardship. Moreover, the substantially completed Masters course, in my view constitutes a compelling need for her to remain in Australia.
11. There is no suggestion on the material before me to indicate the applicant has been involved in a 'workplace exploitation matter', that she has breached any other visa conditions, or that she has engaged in any behaviour of the visa holder towards the Department. There would be no consequential cancellations if her visa is not reinstated as her spouse is not attached to her visa. She confirmed she has no concerns for her safety were she to return to India, and in that regard, potential breach of Australia's international obligations would not flow is the visa remains cancelled.
12. The exercise of the discretion in this matter is borderline. While it is unfortunate that the applicant has clearly had some medical issues while in Australia, I do not consider the material before me suggests that she was medically unfit to study for most of 2023. Nor does it suggest, and I do not accept, that she was too unwell to take steps to talk to her university, the Department, or any migration professionals, in order to proactively understand and comply with her visa obligations. I can understand how the delegate reached their conclusion in this matter. However, I have before me more recent information which post dates the delegate's decision, which weighs in the applicant's favour. That she has now substantially completed the course of study for which her visa was granted weighs strongly in her favour when assessing a number of the factors I am to have regard to when exercising this discretion, as set out above.
13. The applicant should be mindful in the future to ensure that she understands and abides by the requirements of any visa she holds. If she does not understand these, she ought to take steps herself to seek professional guidance in this regard.
14. 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 Awais Tahir (MARN: 2117698)

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.