The applicant attended the hearing scheduled for 1 May 2025. She provided a transcript dated 8 February 2023 for the Certificate III in Early Childhood Education and Care showing the passing of seven units in the course.
She also provided an email from Admissions at Avondale University, dated 28 March 2025, indicating that it was necessary to provide a transcript to confirm her eligibility for direct entry into the Master's program. It indicates that transcripts need to be certified. The email refers to semester 2 orientation commencing on 4 August 2025.
In the second hearing, the applicant indicated that contrary to her indication in the first hearing that the Master of Counselling was to commence in March or May 2025, the relevant intake was in fact in August 2025.
The Tribunal noted to the applicant in the second hearing the significant latitude it had given her in the first hearing and expressed very significant concern that relevant documents had not been provided in the timeframe indicated with some documents only being provided at the second hearing.
The applicant apologised but did not otherwise readily explain why the documents had not been provided or why she did not contact the Tribunal to explain why they had not been provided.
The applicant in the second hearing maintained that her initial education provider advised her that there was a new certificate in relation to the previously studied Certificate III in Early Childhood Education and Care and that none of her previously passed seven units would be taken into account in obtaining the new certificate. She would effectively have to start studies from the beginning.
The Tribunal queried that this would be the case and asked for evidence from the education provider that would substantiate this. In the hearing, the applicant searched for correspondence on her mobile phone. The correspondence that she showed to the Tribunal in the hearing referred to the applicant having to re-enrol in the course but it did not indicate that she would get no credit for any of the units previously passed.
The applicant was given the opportunity following the second hearing to provide written evidence from the previous education provider that effectively there was no pathway to get credit from the seven units previously passed.
In relation to the Master of Counselling, the applicant indicated that she is not yet enrolled in this course. The Tribunal gave the applicant a period of two weeks from the second hearing to enrol in this course and to provide evidence of the initial fee paid for enrolment.
The Tribunal put to the applicant that unless all of this information was provided within the requisite timeframe, it would proceed to make a likely adverse decision.
The applicant indicated that she understood what the Tribunal was saying and would provide the required documents within the requisite timeframe.
The Tribunal noted to the applicant that even if evidence was provided from the previous education provider saying that she could receive no credits for any of the units previously passed, she still had the obligation to be enrolled in a registered course and had not been enrolled in a registered course for approximately a year. In response, the applicant indicated that this was due to issues caused her by the death of her mother and when she recovered from these issues, she took steps to reenrol.
Albeit later than two weeks after the timeframe indicated, the applicant provided a text message from the previous education provider responding to a query by the applicant as to why she could not get credit for the seven units passed in the new certificate. The response indicates that it was due to a change made by the Australian government such that they had to change that course to suit the new requirements.
Based on this evidence, the Tribunal is satisfied that the applicant was told she would have to start a new certificate all over again with no credit for previous units passed. As indicated in the second hearing, although very disappointing, this does not in itself excuse not being enrolled for a period of almost a year.
The applicant provided various communications with Avondale University indicating discussions for enrolment in the Master of Counselling. In information provided to the Tribunal on 9 July 2025, Avondale College advised the applicant that their Master of Counselling was not a registered course that would entitle the applicant to a student visa.
The Tribunal then wrote to the applicant indicating that on the basis that the course she wished to enrol in was not a registered course, enrolment in this course would not now be a discretionary factor in her favour and she should not enrol with an expectation that the visa would not be cancelled by the Tribunal.
The Tribunal now deals with the claimed extenuating circumstances in relation to the period of non-enrolment. The Tribunal would make some allowances for a period of non-enrolment in the circumstances of being told that she would have to start her course all over again. However, it does not justify in the Tribunal's view a failure to be enrolled in a registered course for as long as 11 months. If there were emotional issues caused by the death of her mother, she should have enrolled in a registered course and sought a deferral on compassionate and/or medical grounds.
The Tribunal is not satisfied that the applicant could reasonably have thought that the course that she studied at Avenues Training College was a registered course, particularly given the scant degree of study of which evidence has been provided.
The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant's control that explain or justify the extensive 11 months period of non-enrolment.
The Tribunal is prepared to accept hardship to the applicant if the visa remains cancelled in terms of having to return to her home country from Australia sooner than she may have hoped and not being able to progress with a Master of Counselling at Avondale University. As indicated, however, this is not a registered course which means that the applicant would have no entitlement to a further student visa based on enrolment in this course. Given that the visa that has been cancelled has expired, a Master of Counselling enrolment at Avondale College would not be a course eligible to facilitate the granting of a new student visa. This is adverse to the applicant.
If the visa is cancelled the applicant could be in Australia on an unlawful basis when her bridging visa expires, potentially subjecting her to immigration detention However, the Tribunal considers that the applicant would be eligible to for a bridging visa while she makes arrangements to leave the country. If the applicant determined not to leave the country and to remain unlawful, it is appropriate, and not a discretionary factor against exercising the discretion to cancel the visa, that she may be subject to immigration detention.
There is no evidence that the interests of children in Australia are affected.
The applicant has not indicated any fear of persecution or significant harm on return to Fiji. The Tribunal does not therefore consider that Australia's non-refoulment obligations are a relevant discretionary factor.
These are the relevant discretionary factors which the Tribunal balances.
Significantly adverse to the applicant is the Tribunal not accepting that there are extenuating circumstances beyond her control that explain a period as long as 11 months of non-enrolment. As indicated, if there were serious health issues for the applicant caused by the death of her mother, she should have maintained enrolment and sought a deferral on medical grounds.
The applicant's future desire is to study a Master of Counselling at Avondale University. This is an unregistered course that does entitle a student visa and thus not be a course that would entitle the applicant to a new student visa. Thus, this genuine intended study in Australia is not a discretionary factor which weighs against exercising the discretion to cancel the visa.
The various adverse discretionary factors outlined in this decision are not outweighed by any discretionary factors in her favour including any degree of hardship she will face as a result of the visa being cancelled.
The Tribunal determines to exercise its discretion to cancel the visa.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
[2]
The Tribunal affirms the decision to cancel the applicant's Subclass 500 (Student) visa.
[3]
Date(s) of hearing: 5 February 2025 and 1 May 2025
[4]
Representative for the Applicant: Mr Bijaya Gurang (MARN: 1805361)
2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition
[7]
(1) This regulation applies in relation to a visa if:
[8]
(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
(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:
[10]
(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.
[11]
(3) Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
[12]
(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.
[13]
Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.
[14]
2.43B Circumstances in which the Minister is not to cancel certain temporary visa for breach of restricted work condition
[15]
(1) This regulation applies in relation to a visa if:
[16]
(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.
[17]
Certificate issued by a certifying entity that is a government entity
[18]
(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:
[19]
(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.
[20]
Certificate issued by a certifying entity that is not a government entity
[21]
(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:
[22]
(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.
[23]
(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:
[24]
(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.
[25]
(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.
[26]
(6) Subregulations (2), (3) and (4) do not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
[27]
(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.
[28]
Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.