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.
3. The applicant confirmed at the hearing that he was aware that his student visa was subject to conditions. He further understood that one of those conditions was that he maintain enrolment in a full-time registered course of study. The applicant did not dispute that he had breached his student visa condition, he acknowledged that he had not been enrolled in a course from 23 March 2023.
4. The Tribunal has had regard to the concession of the applicant, the material in the Department file including the decision record of the delegate and the PRISMS records of the applicant, the relevant details of which were provided to the applicant in the NOICC. The Tribunal is satisfied that the applicant was not enrolled in a full-time registered course of study from between 23 March 2023 and 6 November 2023. Consequently, the Tribunal finds that the applicant has not complied with condition 8202(2)(a) of his visa.
5. For temporary visas other than bridging, criminal justice and enforcement visas subject to a 'restricted work condition', the decision-maker is not to cancel the visa under s 116(1)(b) of the Act if prescribed circumstances exist: s 116(2) and reg 2.43B of the Regulations. The prescribed matters are set out in the attachment to this decision, and relate to circumstances where there is a written certification by a 'certifying entity' in relation to the visa holder in respect of a 'workplace exploitation matter'. These prescribed matters are not relevant in this particular case.
6. It follows that 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 must proceed to consider whether the power to cancel the visa should be exercised.

Consideration of the discretion to cancel the visa

1. At the time of the decision of the delegate there were no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However due to the advent of the Migration Amendment (Strengthening Reporting Protections Regulations 2024(Cth) which introduced a new reg 2.43A, there are now prescribed workplace exploitation matters that a decision maker must have regard to in determining whether to cancel certain temporary visas including student visas. The Amending Regulation commenced on 1 July 2024, and apply in relation to a breach of a visa condition that occurred before, on or after 1 July 2024. In the absence of evidence that the applicant has been involved in a 'workplace exploitation matter' which is prescribed under regs 2.43(2)(a) and (b), they are mostly not relevant to the Tribunal's assessment in this particular matter. However, reg 2.43(2)(d) still operates.

Reg 2.43(2)(d) Whether there is any evidence that the visa holder is not complying, or is no longer seeking to comply with the purpose of the visa

1. The evidence in the present case is that the applicant did not comply with condition 8202(2)(a) for in excess of 8 months, a considerable period. The purpose of the student visa is to permit a holder to engage in approved study in Australia and obtain desired qualifications. The requirement of condition 8202(2)(a) goes to this core purpose of the visa.
2. The applicant is yet to satisfactorily complete a course in Australia. He arrived in Australia in February 2020 with the intention of undertaking a Masters in Information Technology. He told the Tribunal that he enrolled and went to his orientation but ceased studying that course after a few weeks because he became ill with COVID-19. He said that the COVID-19 pandemic made him very stressed and that he was worried about his family as they were all affected by the virus. His grandmother subsequently died of complications related to COVID-19 and he was very close to her. The Tribunal questioned the timing of the applicant's illness noting that he was undertaking his studies in Hobart and the global pandemic was not declared until 20 March 2020. It queried with the applicant whether there were active cases of COVID-19 in Tasmania in February 2020. The applicant said that he did not seek medical treatment, he had symptoms but was unable to check. Again, the Tribunal queried why he could not seek medical treatment, noting that no lockdowns would have been present in Tasmania in February/March 2020. The applicant said that he was just scared and did not know what to do.
3. After he stopped studying the Masters course the applicant said that he did not return to study for over a year. He said that he was not interested in study at the time and he wanted to return to India. The Tribunal is not satisfied that the circumstances as described by the applicant provide a reasonable explanation for his lack of progress while holding his initial student visa.
4. When he came to apply for the visa under review he said that he spoke with his parents and they wanted him to remain and obtain a degree. He then changed his mind and decided to get a qualification. In India his grandfather had a restaurant, he had a bit of a passion for cooking and he thought that he could change his career. He took an admission in the Certificate IV in Commercial Cookery. However, he conceded to the Tribunal, that he did not progress with this course.
5. When he responded to the NOICC he then dropped down to the Certificate III in Commercial Cookery. When asked whether he was regressing in his studies the applicant said that he did not want to waste more time and this was why he dropped down to a one year course. His grandfather had a restaurant and if he had a certificate he would have some skills and that he could find some employment in the profession. Under questioning the applicant conceded that his grandfather was deceased, but he claimed that the business was still owned by his family.
6. He does not currently hold and enrolment, although it is noted that the applicant is presently without permission to study on his current bridging visa. The Tribunal held concerns as to whether the applicant intended in the future to comply with the purpose of the visa, and he that he would just undertake a Certificate III in Commercial Cookery and then he would go back to India. Overall, in the assessment of the Tribunal the applicant has not in the past behaved in a manner consistent with compliance with the purpose of the visa and there is limited evidence that he will do so in the future.
7. These considerations in the assessment of the Tribunal weigh in favour of the exercise of the discretion to cancel the visa.
8. There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department's Procedural Instruction 'General visa cancellation powers'.

The purpose of the visa holder's travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia

1. This consideration is similar in part to the mandatory consideration in reg 2.43(2)(b), the purpose of the applicant's temporary stay in Australia was so that he could undertake approved study in a full time registered course. The applicant arrived in February 2020 and is yet to satisfactorily complete a course in Australia. In addition, he has consistently lowered his level of qualification which was not considered in line with the purpose of the visa.
2. The applicant claimed that he just wished to complete a Certificate III in Commercial Cookery to set up his new career. The applicant said that although there were similar courses in his home country, the teaching was old school and did not provide much practical knowledge. He thought that he was better suited to the style and standard of teaching in Australia. The Tribunal queried this claim as the applicant was yet to complete a course despite several attempts at different courses, yet in his home country he had achieved a good qualification with reasonable marks. The applicant said that he had attended some classes and he now knew the teaching procedures in Australia.
3. The applicant claimed his girlfriend in India wanted to get married and did not want to wait longer. He did not want to spend too much more time in Australia, he claimed after just a year of study undertaking the Certificate III in Commercial Cookery he would be able to start his career. It was noted that the applicant already had higher level qualifications in his home country, these qualifications were a bachelor in Electrical and Electronic Engineering which the applicant said were achieved at a technical related university. It was considered that the applicant already had a career he could return to. The applicant said that it was almost 13 years since he finished his studies in his home country, that the field of IT was very competitive, and that this would cause him mental pressure. When asked about his past employment the applicant said that he was working as an associate software engineer, but in the past could not find sufficient professional growth with higher pay. This was the reason that he came to Australia to undertake his Master qualification in IT.
4. Consideration has been given to his evidence to the Tribunal that for a significant period of time since he arrived in 2020, he has wanted to return to his home country. When asked why he had a compelling need to remain in Australia, the applicant said that his past failure was due to certain circumstances, and now he wanted a last chance to prove himself and take care of his family. The Tribunal also considered that, on the evidence of the applicant, his mental problems and lack of support proved a barrier to his studies in the past, and it asked the applicant how these factors had been addressed such that it could be satisfied that he had the resilience to undertake study in the future in line with the purpose of the visa. The applicant said that he had faced challenges in the past and learnt about himself and he had responsibilities to take care of his family in the future, he responded that he did not want to fail again at his age. This did not demonstrate that he had addressed issues which created obstacles for him in the past. The Tribunal asked the applicant about his financial resources to study in the future and he said that his father had several properties and his mother was now in good health, they would support him. With these resources, it was not transparent to the Tribunal why the applicant needed to complete studies to support his family as claimed.
5. In assessing this factor it is not considered that the applicant has acted in line with the purpose of the visa. The Tribunal is not satisfied as to the value of his studies proposed studies considering his existing experience and qualifications, nor that a Certificate III is required to support his family in the future. It is not demonstrated to the Tribunal that if the applicant wishes to change his career he could no undertake similar qualifications in his home country. It is also not considered that he has a compelling need to stay in Australia.
6. The Tribunal considers that this factor weighs in favour of the exercise of the discretion to cancel.

1. Pursuant to the provisions of s 359A of the Act the Tribunal provided to the applicant information contained in his PRISMS records, the relevant information was that his Certificate IV was cancelled due to unsatisfactory course progress. The applicant was advised that this was relevant because it was another condition of his student visa 8202(c)(i) that he not be certified by his course provider as not having achieved satisfactory course progress. The applicant was informed that if the Tribunal relied on this information it may find that he had breached a further condition of his student visa, and consequently the Tribunal may not be satisfied as to his past compliance with multiple visa conditions which would again weigh in favour of the discretion to cancel. In response the applicant said that he was experience depression in the past and although he was attending classes he was not submitting anything in the course.
2. The applicant has presented no evidence to support the extent of his depression as claimed. He was able to maintain employment throughout the period he was not able to attend to his studies, with the exception of a short period while he was recuperating from an injury to his hand in April 2022.
3. Tribunal accepts that there is no other information available in the Department file about non-compliance with visa conditions.
4. The Tribunal gives this factor a little weight in in favour of the exercise of the discretion to cancel.

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

1. When asked about hardship which may be caused if the visa was to remain cancelled, the applicant said that he had already undergone a lot of hardship and failure in his attempt at studies in Australia. He maintained that he had an obligation to support his family in the future, and that his parents had already contributed significantly financially to his attempts at study in the past. He said that he was 33 years old and had a fear of failure, and just needed one last chance to prove himself. He said that he was not sure what hardship he would face if he returned to India. He now had a 5 year gap in his previous employment.
2. The Tribunal put to the applicant that he could undertake a relevant course to improve his qualifications in software programming. The applicant said that India was very competitive and he was unsure what hardships he would face trying to get a job in software programming. He thought an Australian qualification in cookery from Australia would get his career back on track. The Tribunal questioned the applicant why he would need a Certificate III to work in restaurant which was still under the ownership of his family. He was asked whether there would be a role for him in any event should he chose in the family business. The applicant yes this was the case, but that it was an old style restaurant and that there may be challenges in the future and he would be able to manage it more effectively in the future with a qualification.
3. The Tribunal accepts that if the applicant's visa was to remain cancelled the applicant would experience some hardship because he may be required to return to his home country without obtaining qualifications. It is accepted that he would feel some shame and not meet his family expectations. However, the Tribunal is not satisfied that the degree of harm would be considerable or weighs significantly against the exercise of the discretion to cancel. He confirmed that his family were aware of his past struggles and would continue to support him. The Tribunal is also not satisfied that the applicant would be without options for his employment or education in the future.
4. The Tribunal places a little weight on this factor in favour of the applicant.

Circumstances in which the ground for cancellation arose.

1. The applicant was asked how his enrolment became cancelled and he said that after he enrolled in the Certificate IV he had a workplace accident. Then he had issues with backpain. He attended the doctor who found a lump on his kidney and he was sent for more tests. Then he heard that his mother had a heart problem and she was admitted to hospital. The applicant said that as a consequence of all this he fell into depression and he did not know what to do. He stopped going to classes and a month passed. His father had to spend money on his mother's treatment and he did not have money for his classes. His college sent him a notice of intention to cancel his CoE, he was thinking of returning back to India but continued to be unsure what to do. His mother was slowly recovering but he did not know how to convince his parents that he should return. He was in depression and then he got an email from the Department with the NOICC. He spoke with his father who asked him to continue his studies so that he could get a qualification.
2. The Tribunal considered the applicant's evidence in light of his submissions to the Department. He confirmed the report of the Auburn Hospital admission on 22 April 2022 was his workplace injury. He said that he was working at vegetable processing and he cut his finger and had to go to hospital for the repair of his nailbed. He was off work for two to three weeks. This was some 11 months before the applicant's enrolment was cancelled.
3. He also confirmed the invoice he submitted to the Department for scans he underwent in October 2022 were the relevant assessments in relation to his kidney and back issue. He further had a follow up with Dr Patel in March 2023, he was told that it might be an infection and there was not a serious issue and he was prescribed some antibiotics for a course of 40 days. Under questioning from the Tribunal, the applicant said that he took the medication and slowly recovered.
4. The Tribunal has had regard to the medical evidence presented by the applicant as to his mother's condition. The evidence is that his mother was discharged from hospital on 20 January 2023. It appeared that his mother was on the way to recovery when the applicant's enrolment was cancelled. The applicant said that he had depression for some months after and for this reason did not re-engage with his studies. The Tribunal asked the applicant if he sought medical assistance for his depression and he said that he did not. He claimed that he was just talking with his father. The applicant was asked whether he was working during this period and he said that he was only undertaking his part-time work in vegetable processing.
5. The Tribunal accepts that the applicant's concern about his kidneys and his mother's illness may have impacted on his ability to study. It is not demonstrated to the Tribunal that this led to circumstances outside his control that prevented him from seeking assistance from his course provider while he underwent medical treatment or that it explains that he was not enrolled for a period of approximately 8 months. The applicant was able to maintain his employment, and in the absence of medical evidence cannot be satisfied that his depression impacted on his ability to comply with his visa conditions, to the extent that the breach was outside his control.
6. The Tribunal places weight on this factor in favour of the exercise of discretion to cancel.

The past and present behaviour of the visa holder towards the Department

1. There is no evidence that the applicant had not been cooperative in his dealings with the Department.
2. The Tribunal attributes this consideration a little weight in favour of the applicant and against the exercise of the discretion.

Whether there would be consequential cancellations under s 140

1. There are no dependent family members included with the grant of the applicant's visa. There will not be any consequential cancellations if the applicant's visa is to remain cancelled.
2. There is no weight attributed to this factor.

Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, 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 legal consequences that may apply in the case of visa cancellations. These include restrictions on obtaining a further visa, particularly if the visa remained cancelled the applicant may be subject to a restriction under s 48 of the Act which would limit the which would limit further visa applications while the applicant remained onshore. Further, due to the operation of PIC 4012, the applicant may also be unable to be granted further visas to Australia offshore for three years from the date of cancellation.
2. These legal consequences are the intended and legitimate consequences of a visa cancellation. The applicant was invited to address the Tribunal as the consequences of cancellation and he conceded that there was nothing exceptional or unusual about his circumstances. The Tribunal is not satisfied that these intended consequences of cancellation would impact on the applicant in way that weighs in favour of the applicant and against the exercise of the discretion.
3. The applicant also confirmed for the Tribunal at the hearing that if he had exhausted all his legitimate options of review he would abide by the lawful direction of the Department to depart. Consequently, the Tribunal is satisfied that the possibility of the applicant being detained is remote.
4. The Tribunal is not satisfied that this factor weighs in favour of the applicant and gives this factor neutral weight.

Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation

1. The applicant is a citizen of India. He said that he did not have any concerns about returning to India. The applicant did not maintain, and there is no evidence before the Tribunal, that Australia's international obligations would be breached by the cancellation of the applicant's visa. The applicant has no children whose interests would be affected. He said that he was only afraid of returning to India as a failure.
2. The Tribunal gives this factor no weight in the consideration of the exercise of the discretion.

1. The were no other relevant factors identified to the Tribunal.

1. The Tribunal has considered all of the evidence and the relevant circumstances of the applicant, individually and cumulatively. Overall, it is considered that there are limited aspects in favour of the applicant. Although it is accepted that the applicant has cooperated with the Department, and the applicant will experience some hardship, these factors favourable to the applicant are generally considered of low weight. The breach of condition 8202(2)(a) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. The applicant's actions have not in the past been consistent with that purpose, and the Tribunal holds concerns about his future intentions. It is not demonstrated to the Tribunal on the material before it that the circumstances which gave rise to the cancellation were outside the control of the applicant or that the applicant has a compelling need to remain in Australia. Overall the Tribunal is satisfied that the relevant factors and considerations weigh in favour of the exercise of the discretion to cancel the visa.
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 Subclass 500 (Student) visa.

Representative for the Applicant: Mr SUJEEVAN KUMAR PERU (MARN: 1909662)

ATTACHMENT - Extract from regs 2.43A and 2.43B of 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.

2.43B Circumstances in which the Minister is not to cancel certain temporary visa for breach of restricted work condition

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

(a) the visa is a temporary visa other than:

(i) a bridging visa; or

(ii) a criminal justice visa; or

(iii) an enforcement visa; and

(b) the visa is subject to a condition (the restricted work condition) restricting the work that the visa holder may do in Australia (other than a condition that prohibits the visa holder from engaging in any work in Australia); and

(c) the Minister is satisfied that the visa holder has not complied with the restricted work condition.

Certificate issued by a certifying entity that is a government entity

(2) For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:

(a) a certifying entity that is a government entity has issued a written certificate in relation to the visa holder in respect of a workplace exploitation matter that set outs the matters agreed to by Immigration and the government entity;

(b) the Minister is satisfied that there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the certificate relates;

(c) the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;

(d) 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 the certificate relates;

(ii) to comply in future with the visa conditions to which the holder's visa is subject.

Certificate issued by a certifying entity that is not a government entity

(3) For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:

(a) a certifying entity that is not a government entity has issued a written certificate stating that the entity considers that:

(i) there is prima facie evidence that the visa holder is currently, or has been within the 12 month period preceding the issue of the certificate, the subject of a workplace exploitation matter; and

(ii) there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder is, or has been, subject;

(b) the Minister is satisfied that there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder is, or has been, subject;

(c) the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;

(d) the visa holder has committed, in writing, to do both of the following:

(i) to take action to resolve the workplace exploitation matter in a timely manner;

(ii) to comply in future with the visa conditions to which the holder's visa is subject.

(4) For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:

(a) a certifying entity that is not a government entity has issued a written certificate stating that the entity considers that:

(i) there is prima facie evidence that the visa holder has been the subject of a workplace exploitation matter at a time that is more than 12 months before the issue of the certificate; and

(ii) there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder has been subject;

(b) the Minister is satisfied that:

(i) the workplace exploitation matter to which the visa holder has been subject is serious or systemic in nature; and

(ii) there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder has been subject;

(c) the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;

(d) the visa holder has committed, in writing, to do both of the following:

(i) to take action to resolve the workplace exploitation matter in a timely manner;

(ii) to comply in future with the visa conditions to which the holder's visa is subject.

(5) Subregulations (2), (3) and (4) do not apply in relation to the visa if the Minister is satisfied that the visa holder has failed to comply with a written commitment of a kind mentioned in paragraph (2)(d), (3)(d) or (4)(d), or paragraph 2.43A(2)(e), that the visa holder has previously given in relation to the visa.

(6) Subregulations (2), (3) and (4) do 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 restricted work 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.