1. A visa may be cancelled under s 116(1)(b) if the Minister is satisfied that the holder has not complied with a condition of their visa. In this instance condition 8202 was attached to the applicant's visa.

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 claimed that he was not really aware of the conditions which attached to his student and said that he just knew the basic things. When asked whether he was aware that it was a condition of his visa that he study full time in a registered course, the applicant confirmed that he was aware of this condition. He told the Tribunal that the visa under review was the second student visa that he had held.
4. When asked whether he dispute that he was without an enrolment in a registered course of study between 31 August 2022 and 12 October 2023, the applicant said that he believed at the time he had an enrolment and was not aware that his enrolment had been cancelled.
5. The Tribunal asked the applicant if he had any evidence to dispute the information contained in his PRISMS records, as set out in the decision of the delegate, that he was not enrolled between 31 August 2022 and 12 October 2023, and he said that he did not. The applicant was asked if he was actually studying between 31 August 2022 and 12 October 2023 and he said that he was not.
6. The Tribunal has had regard to the material before it, the applicant's PRISMS records, relevant details of which were disclosed to the applicant in the NOICC and the delegate's decision record. The applicant confirmed for the Tribunal that he was not studying at the time and has no evidence to demonstrate that he held a valid enrolment. The applicant was only granted the visa under review on 5 November 2022, although he applied for the visa several months earlier, from August 2022 the applicant was the holder of a bridging visa. On the material before the Tribunal, it is satisfied that the applicant was not enrolled in a full time registered course while the holder of a student visa between 5 November 2022 and 12 October 2023. Consequently, the Tribunal finds that the applicant has not complied with condition 8202(2)(a).
7. 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.
8. 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 11 months, a considerable period. Furthermore, he had ceased studying prior to the grant of the visa. 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 was asked about his study intentions on arriving in Australia and he said that when he came to Australia in 2019, he had intended to do a course in accounting. After about 6 months he said that he switched to the Certificate III in Painting and Decorating. The applicant was asked about his progress in the Certificate III because he said that it was one of the courses he intended to study when he applied for the visa under review, and also re-enrolled again in October 2023. The Tribunal held concerns as to whether the applicant had made progress in his studies while holding a student visa in the past. The applicant claimed that he had satisfactorily completed the Certificate III in Painting and Decorating. He was provided with leave following the hearing to submit evidence of the attainment of the qualification. Pursuant to the provisions of s 359A of the Act, the Tribunal raised with the applicant information contained in his PRISMS records that since February 2020 he had enrolled on four occasions in the Certificate III in Painting and Decorating. It was identified to the applicant that this was considered relevant as the repeated enrolments indicated that he was not progressing with the studies and if relied upon it may lead the Tribunal to not be satisfied that he was complying with the purpose of the visa. The applicant elected to respond immediately and said that the circumstances were such that it took him some time to complete his studies in the course.
3. The Tribunal acknowledges that post hearing it received a Statement of Attainment in the Certificate III in Painting and Decorating that was issued to the applicant in May 2022, by the GEN Institute. It accepts that this demonstrates that the applicant was, prior to applying for the visa under review, assessed as competent in 22 units as part of the Certificate III in Painting and Decorating. It is not satisfied that the applicant has demonstrated that he has obtained the qualification. The Tribunal also notes the finding of the delegate in their decision record that while holding his previous visa he had in the past an extended period without enrolment during 17 May 2021 and 28 April 2022, a total of 347 days. The Tribunal is not satisfied that the applicant's past lack of progress in his studies, or his prolonged period of non-enrolment, is consistent with compliance with the purpose of the visa.
4. The applicant told the Tribunal that if he was successful on review he intended to return to his studies. He was not currently studying because he was not permitted to do so under his current bridging visa. The applicant said that his agent had told him that he held a current enrolment, he believed it was a Diploma of Building and Construction. He was asked when the course started and the applicant said that he did not know but his agent would know as they had obtained the enrolment for him. The Tribunal then asked the applicant when his course would be finished and again the applicant responded that he would ask his agent. Again pursuant to the provisions of s 359A of the Act the Tribunal raised with the applicant information contained in his PRISMS records that he had a current enrolment in the Certificate IV in Building and Construction that commenced on 10 February 2025. It was identified to the applicant that the information was relevant because it was a Certificate IV course and not a Diploma as he represented to the Tribunal and that if he genuinely intended to do the course the Tribunal would expect he would know when it started. The applicant responded and said that he was not aware of the start date and that he would speak to his agent and see whether this date could be postponed. He did not address the Tribunal's concern that he was unable to identify the course as a Certificate IV instead of a Diploma.
5. It is expected that if the applicant genuinely intended to return to study he would have a reasonable knowledge of the course he intended to undertake, where it would be delivered, when it started and the duration of the course. This raises concern for the Tribunal that the applicant will seek to comply with the purpose of the visa in the future.
6. The Tribunal also held concerns that the applicant was able to maintain his enrolment without attending the course, in response the applicant said that his friend was assisting him and he was lending him money for relevant fees.
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 is yet to satisfactorily complete a course in Australia and remained without an enrolment for over 16 months, and for period of around 11 months while the holder of a student visa. The delegate notes in their decision record that he only obtained a further enrolment on 13 October 2023, after being contacted by the Department to confirm his last known address. This past behaviour is not considered to be in line with the purpose of his travel and stay in Australia.
2. As set out above, the Tribunal holds concerns given that the applicant could not demonstrate reasonable knowledge of his intended future course of study about his intentions to return to study. The applicant told the Tribunal that he had accumulated some debts to friends while awaiting review. When asked whether he would have the funds to study in the future the applicant said that he was earning money through his employment and that he believed his parents would help him out. This information added to the concerns of the Tribunal that the applicant intended to return to studying in line with the purpose of the visa in the future.
3. The applicant was asked whether he had a compelling need to remain in Australia and he conceded that he did not.
4. The Tribunal asked the applicant whether he could undertake relevant studies in his home country and he said that there was not much scope for work with studies in the trade sector in his home country. When the Tribunal sought further clarification the applicant said that in India it was not worth working in the trade sector with his qualifications and there was more work available in Australia. As identified to the applicant, the visa under review is a temporary visa. It is intended to allow overseas students to study and improve their qualifications to add value to their future career in their home country. It was not a work visa for Australia. This evidence added to the concerns of the Tribunal that the applicant's intentions to remain in Australia were for the purpose of the visa.
5. The Tribunal is not satisfied that the applicant intends to act consistently with the purpose of the visa and nor is it demonstrated that he has a compelling need to remain in Australia.
6. In the assessment of the Tribunal, this consideration weighs in favour of the exercise of the discretion to cancel the visa.

1. The applicant told the Tribunal that other than his failure to maintain enrolment and the non-compliance with condition 8202(2)(a), he had complied with other conditions of the visa.
2. The Tribunal noted the evidence of the applicant that he was only basically aware of the conditions that attached to a student visa, and that he identified that he had not been attending his course in the past. The Tribunal questioned the applicant on the extent of his past compliance. In response the applicant said that if he was successful he would definitely stay more up to date with things in the future.
3. The 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 neutral weight in in favour of the applicant.

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 for a while he did not have work rights and he had to borrow money from his friends. He claimed that he needed to remain in Australia to earn money to repay these friends. He said that this was his hardship.
2. The Tribunal considers that the applicant could earn money in his home country to repay his friends. It accepts that it may take him longer to accumulate the funds, but the purpose of the visa is not for the applicant to remain in Australia to earn money through employment. It is not satisfied that the applicant would suffer a degree of hardship for this reason.
3. The applicant later said that he will be under mental pressure if required to return to India and that he may fall into depression. He further said that it would be stressful. There is no medical evidence before the Tribunal that the applicant suffers from a psychological condition which would be impacted if the visa remains cancelled. It accepts that it would be emotionally hard if the applicant was required to return to his home country when he would prefer to remain in Australia. It is not demonstrated to the Tribunal that the degree of emotional hardship would be significant.
4. The Tribunal attributes this consideration a little weight in favour of the applicant and against cancelling the visa.

Circumstances in which the ground for cancellation arose.

1. The applicant was asked how his enrolment became cancelled and he said that he did not know. He was then asked how he expected that he would continue to be enrolled if he was not studying at the time. In reply the applicant said that he knew it was a mistake.
2. The applicant was asked whether there was anything that he wanted the Tribunal to understand about the duration of time he was not enrolled. In response the applicant said that he was fighting with his father at the time and he was placing pressure on him to get married. The applicant said that he did not want to marry and this put him under some mental stress. The applicant was asked about his fight with his father and he said that it occurred at the start of 2022, it had taken place over the phone. He had not subsequently married, although this remained the wish of his parents. The applicant said that he did not seek any medical assistance for the decline in his mental condition, he said that he talked to his girlfriend at the time and she helped him out. He remains in contact with his parents, he told the Tribunal that he speaks to his mother daily and his father every couple of weeks. The Tribunal accepts that the applicant may have had a fight with his father about potential marriage in early 2022. It is not satisfied however that the applicant has demonstrated that this was the reason he ceased studying later in the year in August 2022, and remained without a valid enrolment until October 2023.
3. The applicant also claimed that he had an injury to his eye and he said that he got some paint in his eye and was unable to work for a period. When asked how long he was off work, the applicant said that it was about two weeks. The Tribunal has also considered the medical certificate of Dr Simran Bassi, provided by the applicant post hearing. The medical certificate confirms that the applicant was treated for allergic conjunctivitis due to paint fumes in November 2022. While it is accepted that the applicant may have developed a brief eye condition due to paint in his eye, the Tribunal is not satisfied that this was the reason his enrolment was cancelled in the first instance, nor that it remained the reason why the applicant continued to be without a full time enrolment. It is also noted that the certificate issued on 29 March 2023, indicates that it was requested by the applicant to support his request to change his course from painting to another more suitable profession. The applicant told the Tribunal that he continues to work as a painter. Further, he re-enrolled in the Certificate III in Painting and Decorating in October 2023, following correspondence from the Department requesting his contact details. The Tribunal is not satisfied that the reasons that the applicant's enrolment was cancelled or the duration in which he breached condition 8202(a) were outside his control.
4. This consideration weighs considerably in favour of the exercise of the discretion to cancel the visa.

Past and present behaviour of the applicant towards the Department

1. The Tribunal notes that the applicant did not address the issues raised in the NOICC and instead disputed that he could be notified of an extension to respond via email. When questioned about this at the hearing the applicant said that he did not respond to the Department because he did not receive the NOICC, and he had no knowledge of problems with his visa until he received the cancellation decision. This position maintained by the applicant is not consistent with the correspondence sent by the applicant to the Department.
2. Other than this there is no evidence that the applicant had been uncooperative with the Department.
3. The Tribunal attributes a little weight in favour of the applicant and against cancelling the visa.

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 Tribunal is not satisfied that these intended consequences of cancellation would impact on the applicant in way that is unintentional or exceptional 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.
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 that weigh 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. The degree of hardship that the applicant may experience does not, in the assessment of the Tribunal, even when combined with his previous cooperation, outweigh all the other considerations. 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 Harpalyad Teona (MARN: 1571524)

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.