2216504 (Migration) - [2025] ARTA 485

2216504 (Migration) [2025] ARTA 485 (5 February 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2216504

Tribunal:Senior Member G. Cullen
Place:Sydney
Date: 5 February 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 05 February 2025 at 11:04am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolled at lower level than required by visa condition – original enrolment in foundation program and degree course – study difficulties and mental health, and release by university – enrolments in diploma courses and suite of courses leading to graduate diploma cancelled – discretion to cancel visa – father’s financial difficulties – applicant unaware of requirement and unable to leave house or travel interstate to study because of bail conditions – no enrolment when bail conditions varied – criminal convictions and community service – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359A, 376
Migration Regulations 1994 (Cth), Schedule 2, cl 8202(2)(b)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 November 2022 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under s 116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202(2)(b) which requires the visa holder (hereinafter referred to as the applicant) to 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.
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 11 November 2022.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal via video on 13 January 2025 to give evidence and present arguments. His representative did not attend the hearing.
The applicant was given until 15 January 2025 to submit evidence of his bail conditions which he claims indicates he was unable to leave the house to study, in addition to the [December] 2024 sentencing judgement.
This decision and statement of reasons is made by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Request for Postponement of Hearing
On 9 January 2025 the applicant requested the hearing on 13 January 2025 be postponed for two to three weeks. He indicated that his criminal case, which had been occupying his attention was dismissed [in] December 2024 and since that time he has only had a short time to prepare. He claimed he had been attempting to discuss his case with his representative and due to the holidays was only able to secure an appointment on 10 January 2025. He indicated that the additional time if the postponement was granted would allow him to prepare his case for hearing.
The Tribunal considered his request and on 9 January 2025 informed the applicant via his representative that it had decided not to postpone the hearing.
The Tribunal is of the view, notwithstanding the criminal case he has been involved in, that he had sufficient time to prepare his matter considering that he applied for review of the decision of the Department on 11 November 2022, more than two years ago. It also notes that the applicant has already been granted numerous requests for postponements of past hearings so that his criminal matter could be finalised. This includes a request by his agent on 12 December 2023 to postpone the hearing scheduled for 13 December 2023, a request on 12 July 2024 to postpone the hearing scheduled for 14 July 2024, a request on 1 November 2024 to postpone the hearing on 4 November 2024 and a request on 11 December 2024 to postpone the hearing scheduled for 11 December 2024.
The Tribunal is of the view the applicant was given sufficient time to be able to prepare and effectively participate in the hearing scheduled for 13 January 2025.
It also notes that information indicates his criminal matter was not dismissed [in] December 2024 but he was sentenced to 140 hours community service. It makes no adverse finding as to this inconsistency.
Section 376 certificate of non-disclosure
A certificate was issued by the Minister for Immigration under s 376 of the Act certifying that disclosure of certain documents on his file would be contrary to the public interest.
At hearing the Tribunal outlined to the applicant the contents of the certificate, advising him that it considered the certificate to be valid, inviting him to comment on its validity, and on whether it should exercise its discretion to disclose the documents to him.
The information covered is the Department notes as to the assessment of the visa criterion including information as to his criminal charges and a newspaper article referring to the matter, although not naming him. As there is nothing in these notes other than what has already been outlined in the Department decision and subsequent submissions by the applicant’s representative regarding his criminal matter, the Tribunal has decided not to disclose the information to him.
It also raised with him via s 359A at hearing the information regarding his arrest in June 2022, the charges and information in the news article regarding the fraudulent activity he was a part of.
CONSIDERATION OF CLAIMS AND EVIDENCE
In the present case, the applicant was granted a Student visa offshore with condition 8202 on 30 January 2020 valid to 15 March 2025.
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, 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).
The Australian Qualifications Framework (AQF) is the policy for regulated qualifications in the Australian education and training system. It is monitored and maintained by the Commonwealth Department of Education and Training, in consultation with the states and territories. It is made up of 10 levels as follows: 1 – Certificate I; 2 – Certificate II; 3 – Certificate III; 4 – Certificate IV; 5 – Diploma; 6 – Advanced Diploma, Associate Degree; 7 – Bachelor Degree; 8 – Bachelor Honours Degree, Graduate Certificate, Graduate Diploma; 9 – Masters Degree; 10 – Doctoral Degree.
The applicant’s subclass 500 Student visa was granted on 30 January 2020 to study a package of courses including a Foundation Program from 24 February 2020 to 5 February 2021 to be followed by a Bachelor of [Subject 1] from 15 February 2021 to 31 December 2024 at the [University]. The bachelor course is a course with an AQF level of 7. On 1 April 2020 enrolment in the Bachelor of [Subject 1] was cancelled as the applicant changed the program and obtained enrolment in a Bachelor of [Subject 2] also at the [University] from 15 February 2021 to 31 December 2024. This course also has an AQF Level of 7. On 4 September 2020 the [University] granted the applicant a deferral for compassionate and compelling circumstances from 15 February 2021 to 11 July 2021. He was granted a new enrolment in the same Bachelor of [Subject 2] course from 12 July 2021 to 31 July 2024 but this enrolment was cancelled on 24 March 2021 due to non-commencement of Studies. He was granted a letter of release by the [University].
In his response to the NOICC the applicant’s representative advised that the applicant was given a release letter as he was not feeling well and not able to concentrate on his studies. A letter from the [University] counsellor dated 21 July 2020 noted that the applicant attended a phone appointment on 20 July 2020 and walk in on 21 July 2020 and that his poor mental health was impacting negatively on his academic studies. A letter from [Dr A] dated 9 November 2020 indicated the applicant had been suffering anxiety and depression for a couple of months which affected his ability to concentrate and motivation to study. He argued it would benefit him to move to Sydney to be with his family. A letter from the [University] to the applicant noted he was released from study on 24 March 2021 which meant he was able to commence study with a different provider. The letter from the [University] noted that he is to maintain enrolment in a registered course at the same AQF level of higher for which the visa was granted.
He advised at hearing that he then decided to start studying a Diploma of [Subject 3] in Sydney. This is only an AQF Level 5 course. He said at hearing he went to an education agent who did not advise him he had to maintain enrolment at the AQF Level 7 level or higher. He said he did not know this was a condition of the visa. The applicant was then enrolled in a Diploma of [Subject 3] at [College 1] in Sydney from 5 July 2021 with an end date of 2 July 2023. Enrolment in this course was cancelled on 28 July 2021 for non-commencement of studies. A further enrolment in the same course was obtained on 19 August 2021 to study the course from 16 August 2021 to 13 August 2023. Enrolment was cancelled on 17 February 2022 due to non-payment of fees.
On 20 May 2022 the applicant obtained enrolment in the Diploma of [Subject 4] at [College 2] in Perth to be studied from 6 June 2022 to 2 June 2023. At the time the Notice of Intention to Consider Cancellation (NOICC) was sent in September 2022 he was still enrolled in that course. This course is also only an AQF Level 5 course. At hearing he said he wanted to study in Perth as he heard there was a better pathway to a permanent visa. At hearing he said he was unable to travel to Perth to study due to the bail conditions. A variation bail order submitted by the applicant after the hearing dated 27 July 2022 noted he was unable to depart NSW. It accepts his reason why he did not commence this course in Perth.
In response to the NOICC he provided evidence of further enrolment on 14 September 2022 to study at [College 3] in Sydney a Diploma of [Subject 4] from 3 October 2022 to 31 March 2024, an Advanced Diploma of [Subject 4] from 1 April 2024 to 28 September 2025 and a Graduate Diploma of [Subject 5] from 25 September 2025 to 27 September 2026. The latter is an AQF Level 8 course. The Tribunal accepts that from 14 September 2022 he was enrolled in a package of courses leading to a course at the AQF Level 8, higher than the required AQF Level 7. Enrolment in these courses was cancelled. The applicant said at hearing that enrolment was cancelled as due to his bail conditions he was unable to leave the house to attend classes to study. The variation bail order dated 27 July 2022 noted he could only attend [named Institute] in [City]. It accepts, however, he could not study in Sydney.
As outlined above, the evidence indicates the applicant was not enrolled in an AQF Level 7 course or above from 25 March 2021 to 13 September 2022. The applicant did not dispute at hearing that he was not enrolled in an AQF Level 7 course or higher but said he did not know he was required to do so. The Tribunal discussed this with him at hearing.
Notwithstanding, whether the applicant did or did not know of the requirements of a condition is not relevant as to whether the Tribunal is satisfied as to whether he did or did not comply with a condition of the visa.
On the evidence before the Tribunal, the applicant’s visa was granted in relation to study a course at the AQF level 7 being the Bachelor of [Subject 1] at the [University] from 15 February 2021 to 31 December 2024. This enrolment was changed to the Bachelor of [Subject 2] which was ultimately cancelled on 24 March 2021. The Tribunal finds that from 25 March 2021 until he enrolled in the Graduate Diploma of [Subject 5], an AQF level 8 course on 14 September 2022 he was not enrolled in an AQF level 7 course or higher while the holder of a Student visa.
Accordingly, from 25 March 2021 to 13 September 2022 the applicant has not maintained 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.
Accordingly, the Tribunal finds applicant has not complied with condition 8202(2)(b). The Tribunal is therefore satisfied that the grounds for cancellation in s.116(1)(b) exist.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.
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.’
Background
The applicant is a single [Age]-year-old male citizen from Pakistan with no children.
The applicant first arrived in Australia on a subclass 500 Student Visa [in] February 2020 .
The following is a summary of the representative’s submission and attachments provided in response to the Notice of Intention to Consider Cancellation of the visa on 19 September 2022.
·Soon after his arrival while studying the Foundation Program he went through adjustment issues as it was a new country with a challenging living and learning environment which resulted in poor mental health. His performance in this course as a result was very poor and he was given a release from his studies on psychological grounds. The evidence indicates he passed one out of three subjects in Semester 1. A letter from the [University] counsellor dated 21 July 2020 supported that the applicant attended a phone appointment on 20 July 2020 and walk in appointment on 21 July 2020. In a letter the counsellor confirmed his poor mental health as impacting negatively on his academic studies and referred to a release letter being granted.
·A letter from [Dr A] dated 9 November 2020 indicated the applicant had been suffering anxiety and depression for a couple of months which affected his ability to concentrate and have motivation to study. He submitted that it would benefit him to move to Sydney to be with his family.
·A letter from the [University] noted he was released from studying there on 24 March 2021 which meant he was able to commence study with a different provider. The letter noted he is to maintain enrolment in a registered course at the same AQF level or higher for which the visa was granted.
·He then decided to start studying the Diploma of [Subject 3] as he had much empathy for humanity due to the challenging experience of Covid. He started studying on 11 August 2021 but soon after 4 months he was unable to continue due to financial difficulties as his father suddenly had a large financial loss and he was unable to pay the tuition fees. Attached was a Statement from the importer dated 14 September 2022 which noted that the [business] in Punjab was badly affected from September 2021 to January 2022 due to a devaluation in the rupee and Covid. This resulted in a heavy loss for [product] importers including [Mr B], the father of the applicant. As he was unable to pay his tuition fees his enrolment was cancelled.
·From December 2021 to May 2022 his father was unable to pay the fees as he did not have access to funds. In frustration the applicant made two visits to Pakistan from 15 December 2021 to 1 February 2022 and 16 May 2022 to 30 May 2022.
·As friends lent him money he decided to move to Perth and sought admission in the Diploma of [Subject 4] and soon after his father managed to be able to provide him with financial support.
·The applicant then enrolled in a Diploma of [Subject 4] from 3 October 2022 to 31 March 2024, an Advanced Diploma of [Subject 4] from 1 April 2024 to 28 September 2025 and Graduate Diploma of [Subject 5] from 25 September 2025 to 27 September 2026, at [College 3] in Sydney.
·He has excellent English language skills, scoring 75 in his PTE test.
·He will complete the above courses and will return to Pakistan.
·The applicant is a genuine student.
·His future and entire career depends upon the successful completion of these courses.
·The applicant is a young adult with [siblings] in Pakistan and his parents are looking forward to him returning with qualifications from Australia. If his visa is cancelled it would be a tragic end to a dream and his family would be disappointed and embarrassed, bringing shame to them if he does not finish his studies.
Information as supplied by the applicant via his representative, raised with him via s 359A and via oral evidence at hearing indicates the applicant was charged on 21 June 2022 with a number of offences. According to the applicant he was released on bail in June 2022 but was unable to leave his home and study. There is also an article on file from the [Newspaper] which the Tribunal raised with the applicant via s 359A.
On July 2024 the applicant’s representative advised the applicant’s matter was being listed for sentencing at the District Court of NSW for the following offences.
[Refence 1]
Actual offence - Dishonestly obtain property by deception-T1 (Certified)
[Reference 2]
Actual offence - Knowingly deal with proceeds of crime intent to conceal-SI (Certified)
[Reference 3]
Actual offence - Participate criminal group contribute criminal activity-T2 (Certified)
The matter was finally listed on 13 December 2024. At hearing the applicant advised he pled guilty to these charges and advised of the sentence, which was confirmed in a letter from the Court, raised with the applicant via s359A. In sum the applicant was sentenced to an aggregate term of imprisonment of 19 months to commence [in] December 2024 and expiring on 12 July 2026 with a discount of 25.0% included due to guilty plea offer made. In lieu of imprisonment he was subject to an Intensive Correction Order where he is required to perform 140 hours of community service work. He currently holds a Criminal Justice Visa.

At hearing the applicant referred to the judge’s sentencing remarks that the applicant was being used, he assisted the police with their enquiries and was only involved for a short period of time in November/December 2021. While he said he would provide the sentencing judgment he had not done so by the time if this decision. It accepts the applicant’s summary of the judgment as advised at hearing.
At hearing the Tribunal discussed with him his study history and the discretionary criteria, and hs answers are considered below. The Tribunal referred to the criminal circumstances being considered as to whether to exercise discretion in favour of cancelling or not cancelling the visa in the manner outlined below.
In sum the applicant at hearing confirmed the above as submitted by his representative, however advised of the following:
·When studying the foundation course in 2020 he only completed one subject and realised the Bachelor of [Subject 1] was going to be too difficult. He changed to [Subject 2], but his mental health was not good.
·After the first semester he was mentally unwell which affected his study. It was also the time of Covid. He had no friends and took six months break. He said the University released him and he did not have to study.
·He then moved to Sydney and started studying the Diploma of [Subject 3]. He completed 3 units when studying from August 2021 to February 2022. He did not know he had to study at the AQF 7 level. The education agent told him that [Subject 3] was a better pathway for a further visa and that is why he changed.
·He stopped studying in February 2022 as he was planning to move to Perth to begin the Diploma of [Subject 4]. He was going to move to Perth as he heard it was a better pathway for a further visa.
·He did not stop studying in February 2022 because his father could not pay fees but as he wanted to move to Perth. When asked why this was in his submission; he said his agent prepared the submission.
·He said his father had difficulty paying fees in 2021 not by February 2022.
·He was about to move to Perth to study but was arrested in June 2022 and his bail conditions did not allow him to leave home or to study or to travel outside NSW. He could not even go out. His friends looked after him.
·When asked why he has not studied since 2022 he referred to his bail conditions and dealing with the charges. He said and confirmed he was unable to study due to his bail conditions as he was unable to leave the house. He said his father has been financially supporting him.
·He now wants to enrol in a package of courses, starting with a Diploma of [Subject 4] leading to a Bachelor of [Subject 4]
As to his work in Australia, he said he was [an occupation 1] in 2021 and worked in a [workplace] in 2022. He said he started working in [another workplace] in 2023. The Tribunal queried if he was able to work why he was not able to study. He also referred to receiving payment from the government during Covid.
The Tribunal raised a number of concerns which where relevant are raised below.
The applicant provided further evidence as outlined below when the discretionary criteria under the headings below were individually raised.
After the hearing he provided his bail notice dated 27 July 2022 which required him to remain at his home in [Suburb], near [City] except in case of medical emergency, to attend court, to attend legal conferences and medical and mental health appointments, report on bail, engage in paid employment and attend the [named Institute] [City] Campus. It required him to remain in NSW.
The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia
The purpose of the visa grant was for the applicant to travel to and stay in Australia and study. The evidence indicates the applicant was granted the visa offshore on 30 January 2020 valid, at that time, to 16 March 2025 to travel to Australia and study a foundation course leading to a Bachelor of [Subject 1]. He arrived in Australia [in] February 2020 and completed one unit in the foundation course. It accepts for the reasons he claims including mental health issues and difficulties encountered as a result of the Covid pandemic he did not achieve course progress while studying at the [University] and was ultimately granted a release letter. The Tribunal accepts that despite his slow course progress due to difficulties adjusting and his poor mental health from the grant of his visa until around March 2021, his purpose of his travel and stay in Australia was to study.
It accepts he then enrolled in the Diploma of [Subject 3] from 16 August 2021 and achieved course progress in the first semester completing three units and then ceased enrolment in February 2022 as he decided he wanted to return to studying [Subject 4]. It accepts he enrolled in the Diploma of [Subject 4] from 6 June 2022 at [College 2] in Perth but this was cancelled as according to the bail conditions he was unable to travel outside NSW.
At hearing he stated that the submission of his representative was incorrect, and he did not stop studying the Diploma of [Subject 3] in February 2022 as his father could not pay the fees. He said and confirmed it was because he wanted to study in Perth as he heard there was an easier pathway to other visas there.
When asked why he did not continue to study in NSW from June 2022 he referred to his bail conditions as not allowing him to do so and that he could not study online. He said at hearing he wants to complete a Diploma of [Subject 4] and then Bachelor of [Subject 4] and his purpose of being in Australia is to study but could not because of the bail conditions not allowing him to leave his home to study.
In the response to the NOICC he provided evidence of enrolment in a package of courses including the Diploma of [Subject 4] from 3 October 2022 to 31 March 2024, an Advanced Diploma of [Subject 4] from 1 April 2024 to 28 September 2025 and Graduate Diploma of [Subject 5] from 25 September 2025 to 27 September 2026. These courses were to be studied in Sydney. According to the bail variation dated 27 July 2022 submitted after hearing he was unable to study these courses in Sydney. The Tribunal accepts therefore he could not study these courses in Sydney.
However, according to the bail variation dated 27 July 2022 since that date he has been allowed to attend [named Institute] [City] campus at [Address]. This is the [named Institute] Campus. Information indicates this education provider offers a Diploma of [Subject 4] and Bachelor of [Subject 4] at this campus[1]. The Tribunal is of the view if his purpose was to be in Australia to study he would have done so by enrolling and attending the campus, as his bail variation allowed him to do.
[1] [Reference, URL]
The Tribunal notes he was allowed to work as part of the bail conditions and did so and is of the view if his purpose of being in Australia was to study that if he could work, he could enrol in a course and study at [named Institute].
While the Tribunal accepts from June 2022 to December 2024 he was dealing with the criminal charges and lawyers, it is of the view if his purpose of being in Australia was to study, he would have enrolled in a Diploma of [Subject 4] leading to a Bachelor of [Subject 4] at [named Institute] where he was allowed to attend according to his bail conditions.
The Tribunal finds his purpose was not to study while holding the Student visa from July 2022 until the visa was cancelled. As he could have studied at [named Institute], as per the bail variation, it is of the view his lack of study since the cancellation also undermines his claim his purpose is to study.
When asked at hearing whether there is a compelling need for him to stay in Australia, the Tribunal discussed with him having to complete his sentence of 140 community hours. The Tribunal notes that he currently holds a subclass 951 Criminal Justice Stay visa so that he can complete his sentence. Therefore, while completing his sentence represents a compelling need for him to remain in Australia, it does not accept that the cancellation of his visa would affect his ability to meet this compelling need. It therefore gives this neutral weight.
He also referred to wanting to obtain his Bachelor of [Subject 4]. In the response to the NOICC his representative submitted that the applicant is a young adult with [siblings] in Pakistan and his parents are looking forward to him returning with qualifications from Australia. He submitted if his visa is cancelled it would be a tragic end to a dream and his family would be disappointed and embarrassed, bringing shame to them if he does not finish his studies. At hearing he indicated that he wants to stay and complete his Diploma of [Subject 4] and then Bachelor of [Subject 4] and the value of this to his future. When asked why he could not study in Pakistan, while accepting he could study there, he said the quality of the education is not as good. Considering the applicant has been able to study these courses in Australia since June 2022 and has not and that the applicant can study this course in Pakistan, although the education is not as good, the Tribunal does not accept there is a compelling need to remain in Australia for study purposes. It has also considered the matters outlined in the representative’s submission including being unable to achieve his dream, the effects on his family including shame but does not find these represent a compelling need to remain in Australia.
The Tribunal gives this factor neutral weight in the exercise of its discretion to not cancel the visa.
The extent of compliance with visa conditions
The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his visa.
The Tribunal considers that this factor weighs in some favour of the exercise of the Tribunal’s discretion to not cancel the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
At hearing the applicant referred to wanting to complete a Diploma of [Subject 4] and then Bachelor of [Subject 4] and the hardship which would be caused if he was unable to complete these courses and return to Pakistan with a bachelor’s degree from Australia. The Tribunal questioned if that was the case why he stopped studying this course, and if it was too difficult why he now thinks he would be able to complete the course. The applicant’s representative has also referred to the embarrassment and shame that his family would ace and the loss of his dream.
The Tribunal notes his evidence that he can study these courses on return to Pakistan, albeit it accepts that the courses in Pakistan are not as beneficial to him and are not of the same quality. It also is of the view, notwithstanding the criminal case, he was able to study in Australia at [named Institute] from July 2022 as per the bail variation order dated 26 July 2022 but did not choose to do so.
It accepts there would be some shame and embarrassment for the applicant and his family if he returns without an education.
The Tribunal gives this low weight in favour of exercising its discretion not to cancel the visa.
Circumstances in which the ground of cancellation arose
The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as he was not enrolled in a course at the AQF Level 7 or higher from 25 March 2021 to 13 September 2022. He said he was unaware that he needed to maintain enrolment at that level when he transferred from the [University] to Sydney to first study the Diploma of [Subject 3] and then enrol in the Diploma of [Subject 4] in Perth in this period. He said he was unaware of this requirement and when he went to an education agent who advised him to enrol in the [Subject 3] courses; he did not tell him the requirements to maintain enrolment at the AQF level 7 level or higher. The Tribunal has difficulty accepting his claim he did not know this requirement when condition 8202 is a condition of the visa, as he speaks, reads and writes English at a high level, as per his PTE result, and as the release letter from the [University] dated 24 March 2021 refers to condition 8202 requiring him to maintain enrolment in a registered course that is the same AQF level or higher for which the visa was granted. It therefore does not accept he did not know of this requirement.
It therefore does not accept that the circumstances that led to the ground of cancellation arising were beyond his control.
Therefore, the Tribunal gives this neutral weight in exercising its discretion not to cancel the visa.
Past and present behaviour of the visa holder toward the Department
The evidence indicates that the applicant’s behaviour has not been entirely truthful to the Department. In the response to the NOICC the applicant did not refer to the criminal charges he was facing, being on bail as a reason he could not move to Perth and study the Diploma of [Subject 4].
It also views as of concern that via his representative he submitted COEs with his response to the NOICC to study a Diploma of [Subject 4] in Sydney leading to a Graduate Diploma of [Subject 5] from September 2022 when his bail conditions required him to remain at his home in [Suburb] and he was only able to attend [named Institute] in [City]. He would therefore not be able to attend these courses in Sydney. When the Tribunal raised with him why he would submit these COEs if he knew he could not study he said his representative submitted the information without his knowledge. The Tribunal does not accept his representative would have been able to obtain these COEs without the applicant’s knowledge.
The Tribunal gives this consideration some weight in favour of exercising its discretion to cancel the visa.
Whether there would be any consequential cancellations under s 140
The applicant is single with no children. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled. The Tribunal gives this factor neutral weight.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
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, however, the applicant would continue to hold a Criminal Justice Visa to complete his sentence. He would then likely be granted a Bridging visa for a brief period of time to allow him to finalise his affairs before returning to Pakistan. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
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.
The Tribunal gives this consideration neutral weight.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
When asked by the Tribunal whether he had any fear of returning to Pakistan; he said he fears the other members of the gang as he provided evidence against them. He said one of them threatened him with harm on return to Pakistan. The Tribunal is of the view that his claims can be fully 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 Pakistan.
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 or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matter
The applicant has conceded that in June 2022 he was charged and plead guilty to offences. He has advised that [in] December 2024 he was sentenced to 19 months imprisonment to be served as 140 hours of community service. He pled guilty to the abovementioned charges. He referred to the sentencing judgment that he was used by the gang, was not involved for long and had assisted the police with what happened. The Tribunal considers the conviction to be relevant for several reasons. Firstly, the applicant is responsible for his conduct and the extent that it has impacted upon his ability to study as a student. In this regard it notes the bail conditions limited him to enrolment at one education provider. Secondly, it involves criminal conduct which is contrary to the purposes for which the visa was granted. On the basis of his claims as it affected his ability to study from June 2022 it gives this some but not significant weight in favour of cancelling the visa.
The Tribunal has considered all the applicant’s circumstances individually and cumulatively. The Tribunal is satisfied that there are limited aspects that are favourable to the applicant. While it has accepted his travel to and initial stay in Australia was for the purpose of study it does not accept that from mid-2002 his purpose was to study, notwithstanding the criminal charges and case against him. It does not accept he did not know the requirement of condition 8202 that he remain enrolled at an AQF level at or higher for which the visa was granted. While it accepts he has not breached any other conditions of his visa, for the reasons above it has found he has not been entirely truthful to the Tribunal regarding his criminal charges in response to the NOICC in September 2022 as reason for his lack of moving to Perth to study the Diploma of [Subject 4] at [College 2]. It accepts there is some hardship for the applicant and his family with the cancellation of the visa in the manner outlined above. It has considered his claim that he has been threatened by a member of the criminal gang if he returns to Pakistan. The Tribunal is of the view that his claims can be fully 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 Pakistan.
The Tribunal is mindful of the seriousness of breaching a visa condition and remaining in Australia. Further, the cancellation of the visa is the intended consequence of the breach of the relevant condition. Overall, the Tribunal considers that the limited aspects favourable to the applicant do not outweigh the reasons to cancel the visa. The breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, that he was granted the visa to study at the AQF 7 level or above, and did not do so for the period outlined above while holding the Student visa.

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Date(s) of hearing:  13 January 2024
Representative for the Applicant:      Mr Muhammad Rafi (MARN: 1700370)
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(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.
(2) A holder not covered by subclause (1):
(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.