1. On 22 November 2023, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa. The NOICC stated that the ground(s) for cancelling the applicant's visa appeared to exist because he had not been enrolled in a full-time registered course from 10 February 2023 to 1 November 2023 as required by visa condition 8202. He was invited to show that the grounds for cancelling the visa did not exist and to provide any comments about why the visa should not be cancelled.
2. On 25 November 2023, the applicant provided a written response with the following reasons:
   1. The cancellation of his confirmation of enrolment (COE) happened due to a series of unfortunate circumstances in his home country India, in which his family faced significant issues that resulted in severe emotional distress for him;
   2. He struggled with depression, anxiety and mood swings which made it challenging for him to focus on his studies. He needed help but did not seek it; and
   3. His personal circumstances have now improved significantly as the problems back home have resolved. He now has the support of his sister who has travelled from India to Australia. She has been a source of emotional support and with her assistance he has obtained a new COE to study a Certificate III in Carpentry from Crown Education Pty Ltd.
3. Also attached was a COE for a Certificate III In Carpentry dated 2 November 2023 and a Patient Health Summary from Lane Street Medical Centre dated 24 November 2023. The patient summary records that on 24 November 2023 the applicant was prescribed with Fluoxetine (an anti-depressant) and melatonin (sleep aid) and presented with signs of moderate chronic anxiety disorder and insomnia. It recorded no past medical history.
4. On 17 June 2024, the delegate found that the applicant had not been enrolled in a full-time registered course from 10 February 2023 to 1 November 2023. They found that the applicant had not complied with condition 8202(2)(a) of their visa and that the ground for cancellation under s 116(1)(b) of the Migration Act existed. They considered a range of circumstances, including the applicant's response to the NOICC and his enrolment in a new course and concluded that the grounds for cancelling the applicant's visa outweighed the reasons not to cancel the visa.

1. 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. The Tribunal has taken into consideration evidence adduced to the Department and Tribunal and the applicant's oral evidence at hearing. The Tribunal has also considered the applicant's record in the Provider Registration and International Student Management System (PRISMS) and travel movement records.

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 a statutory declaration dated 29 August 2025, the applicant concedes that he was not enrolled in a full-time registered course of study between 10 February 2023 and 1 November 2023 and he acknowledges he breached condition 8202 of his visa and that grounds for cancellation exist. He however requested that the Tribunal exercise its discretion and set aside the Department's decision to cancel his visa. He gave evidence of the same at hearing.
3. The Tribunal has accessed PRISM records which confirm that he was not enrolled in a full-time registered course from 10 February 2023 until 1 November 2023. Accordingly, the applicant has not complied with condition 8202(2)(a).
4. It follows the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As this ground does not require mandatory cancellation under s 116(3), the Tribunal has proceeded to consider whether the power to cancel the visa should be exercised.

1. At hearing the Tribunal discussed with the applicant his enrolment and study history, the reasons that led to his non-enrolment, why he was not enrolled in the relevant period and the discretionary criteria.
2. The applicant has never been married. He is currently single and has no dependent children. The applicant told the Tribunal that he completed secondary school and a Bachelor of Computer Application from Kurukshetra University in India. He gave evidence that he wished to remain in Australia to complete a Certificate III in Carpentry so that he could return to India to work in the building industry with plans to open his own carpentry business.
3. When asked about the value of his course and whether there was a compelling need to remain in Australia, he claimed in India there is no degree and any education was heavily theory based, whereas Australia offered practical learning. He also claimed that Australia had better quality standards, safety codes/standards and efficient material use compared to India.
4. The applicant gave evidence that he has been granted two student visas. He initially came to Australia and was enrolled to study a Masters of Information Technology and General English which he did not complete due to a cessation of his studies and non-commencement of his studies. When asked if he had completed any courses in Australia he replied in the negative. The Tribunal put to the applicant that PRISM records indicated he had completed one course a Certificate III in Light Vehicle Mechanical Technology between 27 April 2020 and 25 April 2021 which the applicant could not remember. The Tribunal is prepared to accept that during the applicant's six years onshore that he has completed one course.
5. Pursuant to s 359A of the Act, the Tribunal advised that there was some information that would be the reason or a part of the reason to affirm the decision under review. That information was that PRISM records indicated that since being granted the student visa on 12 January 2022, that the applicant has not completed any courses whilst the holder of that visa and had a series of COEs cancelled due to a change in his student details, non-payment of fees and non-commencement of studies. This has included:
   1. A Certificate III in Carpentry from 26 April 2021 until 24 April 2023 the COE was cancelled for nonpayment of fees;
   2. A Certificate III in Carpentry from 26 April 2021 until 17 July 2023 the COE was cancelled for nonpayment of fees;
   3. A Diploma of Automative Technology from 31 January 2022 until 29 January 2023 the COE was cancelled for change to COE/Student details;
   4. A Diploma of Building and Construction (Building) from 24 April 2023 until 21 April 2024 the COE was cancelled for non-commencement of studies and
   5. Certificate III in Carpentry from 13 November 2023 until 9 November 2025 the COE was cancelled for non-payment of fees.
6. This information was relevant to the review because it may indicate that the applicant's purpose of being in Australia was not to study in this period. A consequence of relying upon this information was that the Tribunal may decide to affirm the decision under review. The applicant was invited to comment on this information orally or in writing, at hearing or later.
7. The applicant indicated he wished to respond at hearing and his response included; it was an accurate record of his enrolment history; that he regretted his decision for not completing the courses and requested that the Tribunal set aside the delegate's decision to give him a further opportunity to complete his Certificate III in Carpentry.
8. When asked about the reason for his non-enrolment and to identify what the 'series of unfortunate circumstances' were, he claimed it was due to the COVID-19 pandemic and the stress that followed. When asked why he had not made greater academic progress despite being onshore for over six years, he again cited the COVID-19 pandemic. The Tribunal indicated that COVID-19 restrictions ended in October 2021 well before the grant of his student visa and therefore had difficulty accepting it was a reason for his non-enrolment and lack of academic progress. When given a further opportunity to comment he simply repeated the COVID-19. The applicant had no medical evidence to support that he was suffering from any medical condition or obtaining medical treatment during his non-enrolment period. At hearing he also claimed his mother had suffered from health problems (i.e. blood pressure issues); however had no medical evidence to support these claims.
9. When asked why he did not contact his educational provider to notify them that he was struggling or apply to defer his studies for compelling and compassionate reasons, he claimed he had made a mistake and did not know he could apply for a deferral. When asked why he did not contact the Department he again claimed he had made a mistake and did not know he could contact them. He repeated his request that his student visa be granted so he could finish his course.
10. When asked how the applicant had financially supported himself whilst in Australia, he gave evidence that since 2019 until present, he has worked at a carpentry business 22-24 hours per week. When the Tribunal asked the applicant why he was able to work but not study he then claimed he was not working much and working casually.
11. The applicant confirmed his sister is still in Australia and that she has applied for a student visa that has been refused by the Department. She has an application for review currently before the Tribunal. The applicant has no other family in Australia.
12. The applicant was asked whether there were any other relevant matters the Tribunal should consider or whether there was anything else he wished to raise which had not be adequately covered during the hearing. The applicant asked that he be given a further chance and for the Tribunal not to cancel his visa.

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. The prescribed matters are set out in the attachment to this decision.

1. The prescribed matters under reg 2.43A (a), (b), (c), (e) and (f) relate to circumstances where there is a written certification by a certifying entity in which the applicant has been affected by a workplace exploitation matter. There is no evidence to support that these prescribed matters are relevant considerations for this applicant.
2. Regulation 2.43A(d) requires the Tribunal to consider whether there is evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa.
3. The applicant was granted a student visa for the purposes of studying in Australia. Based on the applicant's oral evidence and PRISM records the Tribunal is satisfied that he was not complying with the purpose of the visa. The applicant was not enrolled in a full-time registered course from 10 February 2023 until 1 November 2023, an eight month period which the Tribunal considers to be a significant period of time. The requirement to be enrolled in a course of study goes to the core purpose of the visa. The Tribunal places considerable weight in favour of cancelling the visa.
4. The applicant enrolled in a Certificate III in Carpentry on 2 November 2023. The Tribunal has concerns about his motivation for enrolling in this course at the time he did and is using the student visa to maintain an ongoing residence; noting he did not pay the course fees and yet was able to work. His enrolment was unsurprisingly cancelled. This leads the Tribunal to find that he was not and is no longer seeking to comply with the purpose of the visa which the Tribunal places considerable weight in favour of 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 visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia

1. The applicant was granted a student visa on 12 January 2022. The purpose of his travel and stay in Australia during that time was to be a student. Although he was enrolled in multiple courses in Australia he did not complete any of them. All of his course enrolments have been cancelled for various reasons and at different times. The Tribunal regards his period of non-enrolment of over eight months to be significant.
2. The Tribunal further notes that the applicant has been employed for a carpentry business for six years continuously working approximately 24 hours per week. When asked why he was able to work but not study during his period of non-enrolment he claimed it was because he was working casually and then claimed he did not work much.
3. The Tribunal has considered but does regard the applicant's explanation to be credible or accept it to be an adequate reason for his poor enrolment record and lack of course progression. This is particularly so, noting he has been able to work in an associated field. Overall, his conduct raises serious concerns that he is using the student visa to maintain a residency in Australia to work and earn money rather than study.
4. The Tribunal does not accept that the applicant's desire to stay in Australia is so he can complete a course and not disappoint his family constitutes a compelling need to travel or remain in Australia. This weighs heavily in favour of his student visa being cancelled.

1. The applicant did not comply with Condition 8202 for a period of eight months which the Tribunal considers to be significant. It is a condition that goes to the very core of holding a student visa. His period of non-enrolment and therefore the extent of his non-compliance, whilst holding that visa was significant. This weighs in favour of his student visa being cancelled.
2. There is no evidence to suggest that the applicant has not complied with any other condition of his visa(s). This weighs in favour of his student visa not being cancelled.

The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)

1. The applicant told the Tribunal that he came to Australia to study and that his family had high hopes for him and that he wishes to finish his studies. His sister has come to Australia and has been a source of support and he is now focused and ready to recommence his studies.
2. The Tribunal accepts that if the applicant's visa is cancelled he will be unable to complete his carpentry course in Australia. The Tribunal further accepts that the building and safety standards and learning in Australia may be better than in India, but notes that he can study these courses in India and that similar building codes exist.
3. The Tribunal accepts that the applicant's family may be disappointed in him and has spent some money on travel, accommodation, course fees and associated expenses being an international student in Australia. However, the applicant gave evidence that he has financially supported himself by working in Australia for over six years which helps to offset some of the financial hardship the applicant and/or his family may otherwise experience. The Tribunal further notes a number of his enrolments were cancelled for non-payment of course fees suggesting a relatively limited financial investment in his education. The Tribunal does not accept that he has invested a lot of money to study in Australia or that the cancellation of his student visa places him in a tenuous position that he could not extricate himself from.
4. The Tribunal accepts that the applicant's sister resides in Australia and has applied for a student visa which has been refused and is currently before the Tribunal for review. The Tribunal accepts that the applicant's sister has been a significant pillar of support for the applicant and that there may be an emotional impact upon the applicant and his sister if the applicant's student visa remains cancelled and he is required to depart Australia but the Tribunal notes the applicant's evidence that his personal circumstances have significantly improved. The Tribunal places limited weight in favour of not cancelling the student visa.

The circumstances in which ground of cancellation arose

1. The applicant was asked to explain his claims that his non-enrolment was due to 'circumstances beyond his control' and 'a series of unfortunate circumstances'. The applicant claimed it was due to COVID-19 and associated stress. When the Tribunal indicated it had difficulty accepting this to be a grounds for his non-enrolment given COVID-19 ended before he was granted his student visa, he was unable to explain despite being given multiple opportunities at hearing.
2. Whilst the Tribunal accepts that the applicant may have experienced some general difficulties being an international student, the Tribunal does not accept COVID for being a reason for his non-enrolment noting it had ended prior to the grant of the visa. Whilst the applicant claimed he was suffering stress the Tribunal does not accept these claims given there is no contemporaneous medical evidence in support and noting the applicant was able to continue his employment in the construction industry. The Tribunal further notes the first timed the applicant presented to a medical practitioner was the day after receiving the NOICC. Similarly, the Tribunal does not accept the applicant's claims of stress due to his mother's ill health. No medical evidence was provided to support her suffering from any medical condition or having any medical diagnosis. The paucity of the evidence leaves the Tribunal entirely unconvinced that these issues affected his ability to be enrolled in a full-time registered course.
3. As noted to the applicant at hearing and in the delegate's decision record, the applicant's non-enrolment gave rise to the grounds of cancellation. The applicant acknowledged that he did not complete any of his courses for the reasons outlined to him pursuant to s 359A above. The Tribunal considers the applicant's non-enrolment to be a circumstance of his own doing.
4. There is no evidence to suggest that the ground of cancellation arose because of a relationship breakdown involving family violence.
5. The Tribunal places some weight in favour of his Student visa being cancelled.

The applicant's past and present behaviour towards the Department

1. The applicant engaged positively with the Department by responding to the NOICC in a timely manner. There is no evidence to suggest that the applicant has not been cooperative in dealing with the Department in the past. The Tribunal gives this consideration neutral weight.

Whether there would be any consequential cancellations under s 140

1. The applicant is single with no dependent children. The applicant gave evidence that his sister has applied for a student visa and has her own review application before the Tribunal. 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 to cancellation

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. 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 India. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal.
2. The applicant gave oral evidence 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. There is no restriction on the visa he can apply for once he leaves Australia.
4. The Tribunal gives this consideration neutral weight.

Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation.

1. When asked by the Tribunal whether he had any fear of returning to India he replied in the negative. This is supported by the applicant's evidence that he returned to India to visit family between 14 December 2022 and 15 February 2023.
2. While these circumstances do not appear to breach the non-refoulement requirement or similar provisions, the Tribunal is of the view that any claims can be considered via a protection visa application if he fears the relevant harm on return. The Tribunal is of the view that this is the appropriate mechanism for assessing his claims if he fears return to India.
3. 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. The Tribunal gives this consideration neutral weight.

1. There are no other relevant matters raised by the applicant or in the information before the Tribunal.

1. Considering the circumstances individually and cumulatively, the Tribunal concludes that the applicant's student visa should be cancelled.

1. The Tribunal affirms the decision to cancel the applicant's Class TU visa.

Representative for the Applicant: Mr HARSH YADAV (MARN: 2117646)

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.