2318630 (Migration) - [2025] ARTA 517

2318630 (MIGRATION) [2025] ARTA 517 (10 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2318630

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 10 March 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.

Statement made on 10 March 2025 at 9:50am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant has breached condition 8202 – was not enrolled in a full-time registered course – victim of sexual assault – applicant has experienced severe trauma – medical evidence of her termination and consequent complications – no longer wishes to study onshore and plans to return to Spain – decision under review set aside
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), r 2.43
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

The applicant was granted a Subclass 500 (Student) visa (‘the visa’) on 12 August 2021.
The expiry date of the applicant’s student visa is 15 March 2024, providing for two and a half years during which the applicant would be permitted to reside in Australia for the purposes of full-time study.[1]
[1] See delegate’s decision.
On 11 November 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s visa on the basis that the applicant had failed to comply with a condition of their visa.[2] In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that she failed to maintain enrolment in a full-time registered course.[3] The applicant did not comply with this condition of their visa from 4 November 2022-11 November 2023.[4]
[2]under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
[3] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
[4]See delegate’s decision.
On 16 November 2023, the applicant applied to the Administrative Appeals Tribunal (‘the AAT’) for a review of the delegate’s decision to cancel the visa.[5]
[5]Pursuant to sections 338(2) and 347 of the Act. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
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. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal via video hearing on 27 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, quick, accessible and responsive and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be set aside. My reasons follow.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under section 116(1A) of the Act and regulation 2.43A of the Regulations, and other matters of government policy.
Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition 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).
In the present case, the applicant’s visa was cancelled on the basis that the applicant was not enrolled in a full-time registered course of study or training.
The applicant was enrolled in a number of [courses] which were cancelled for unsatisfactory course progress and nonpayment of fees. The latest of these enrolments was cancelled on 4 November 2022 for unsatisfactory course progress. The applicant has not been enrolled since that time.
The Department sent the applicant a notice of intention to consider cancellation (‘NOICC’) on 23 October 2023. The applicant responded to this on 5 November 2023.
At no stage has the applicant contested the fact that she was not enrolled from November 2022-November 2023.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a). Therefore, there are grounds for cancellation.
For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.
Timeline and enrolment history
The applicant first arrived in Australia in February 2019 at the age of [age] with the intention of improving her English and gaining some qualifications onshore before returning to Spain. The applicant had never lived outside of her family home at this time.
The applicant completed a General English course from February to April 2019 and [another] course from November – December 2019.
She then attempted but did not complete a Certificate III [and] a number of Certificate [IV] courses.
The applicant gave evidence that she completed many units in these courses but never enough to obtain a completion certificate. She conceded she is not the best student and has never found studying easy. She gave evidence that the COVID19 Pandemic in 2020 made things particularly difficult for her. She gave evidence that managing household and living expenses for the first time since moving out of the family home, in addition to doing this with limited English in a foreign country was very challenging.
The applicant lived off her savings for her first five months onshore and then began working as a [occupation] from mid-2019 until the end of 2021 at which time she began working in hospitality.
In early 2021 the applicant was the victim of sexual assault that led to an unwanted pregnancy which she terminated. There were complications after the termination which also made this process more traumatic.
The applicant had difficulty leaving her house for anything other than work for many months.
The applicant met her current partner who is an Australian citizen in March 2022.
On 23 October 2023, the applicant was sent the NOICC. The applicant responded to the NOICC on 5 November 2023 setting out the basic details of the matters referred to in paragraph 24 above, including providing medical evidence of her termination and consequent complications.
The applicant claimed at hearing she and her partner plan to return to Spain and she would like to continue visiting Australia to see his family and friends without issues with her visa applications.
The applicant remains unenrolled and does not have work rights.
Consideration of discretion to cancel the visa
For student visas, there are prescribed matters to which a decision maker must have regard as mentioned in section 116(1)(b): section 116(1A) of the Act and regulation 2.43A of the Regulations. The prescribed matters are set out in the attachment to this decision. I have regarded the prescribed matters.
I have also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Prescribed matters 2.43A
Whether there is evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa.
There is evidence that the applicant was not complying with her student visa conditions from November 2022-November 2023. She gave evidence that she no longer seeks to comply with the purpose of the visa, no longer wishes to study onshore and plans to return to Spain. I place weight in favour of cancelling the visa in this regard.
Other considerations
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
I refer to and repeat paragraphs 14-29 above.
The applicant gave evidence that she does not have a compelling need to travel to or remain in Australia. She gave evidence that she plans to return to Spain with her partner.
The applicant gave evidence at hearing that she wanted to explain that she had repeatedly attempted her study but was not a particularly proficient student and had difficulty completing her courses, although she did complete units in her courses. She has not provided corroborating evidence of this, although the PRISMS[6] record does seem to suggest that this is reliable evidence.
[6] See Attachment.
I am concerned by the evidence the applicant gave about her extensive work onshore, particularly during periods of time when she was working full time and not making adequate course progress. The applicant gave evidence that she worked only ever to support herself enough to live onshore. She gave evidence that she never intentionally wished to breach the conditions of her visa and did genuinely want to complete her courses.
I place some weight in favour of cancelling the visa in relation to this factor.
Circumstances in which ground of cancellation arose
I refer to and repeat paragraphs 33-36 above.
The applicant gave detailed evidence about her sexual assault at hearing and why she chose not to report the incident to police. She gave evidence about the impact this experience has had on her mental and physical health. It is clear from the evidence before me that the applicant has experienced severe trauma from her sexual assault and having to make the decision to terminate a pregnancy after such an incident would clearly heighten and exacerbate that existing trauma. The Tribunal deeply empathises with the applicant in this regard and found her evidence about these events and what she experienced in the aftermath was authentic and reliable and consistent with well-known literature on the impact of sexual violence on victims.
I consider the applicant’s experience of sexual assault, the consequential unwanted pregnancy, the impact on her mental and physical health were out of her control. I note, however, that it was open to the applicant to return to Spain to avoid breaching her visa conditions. I also consider that if an applicant is not in a position to comply with the conditions of their visa, it is their responsibility to take appropriate action to avoid breach of same. It is the responsibility of a visa holder to ensure they are complying with the conditions of their visa.
Taking these factors together as a whole, I place significant weight against cancelling the applicant’s visa in this regard.
Extent of compliance with visa conditions
The applicant’s breach of the condition of her visa to remain enrolled is concerning, being twelve months. She has also had a number of cancelled enrolments for unsatisfactory course progress. I consider the twelve month breach a significant breach and place weight in favour of cancelling the applicant’s visa in this regard. The applicant has otherwise complied with student visa conditions.
The degree of hardship that may be caused to the visa holder and any family members
The applicant gave evidence at hearing about her current relationship. She gave evidence that she does not intend to apply for a partner visa in Australia but wishes for her Australian citizen partner to return to Spain with her. She gave evidence that she would like to visit Australia with her partner to see his friends and family and would not want her immigration rights to be prejudiced by a cancellation decision.
I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study. I recognise that the hardship is felt by family members who may also feel let down and disappointed.
I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa.
Ultimately, I consider the evidence for and against cancelling the visa finely balanced in relation to this consideration.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department. I give some weight against cancelling the applicant’s visa in this regard.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
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 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
If the visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration against cancelling the visa because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
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
The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matters
I consider the factors for and against the applicant in this case finely balanced. I found the applicant to be a forthright, credible witness.
CONCLUSION
Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.
Date(s) of hearing:  27 February 2025
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.
ATTACHMENT – Extract from reg 2.43A 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
Attachment
·‘Course of study’ is defined as a ‘full-time registered course’ and a ‘registered course’ is a course provided by an institution which has been registered under the Education Services for Overseas Students Act2000 (Cth) (‘the ESOS Act’) to provide that course to overseas students.[7]
[7]Regulation 1.03 of the Regulations.
·All registered courses and course providers are listed in the Commonwealth Register of Institutions and Courses for Overseas Students (‘CRICOS’), an online register kept in accordance with the requirements of the ESOS Act.[8] Details of courses listed in CRICOS are integrated into the Provider Registration and International Student Management System (‘PRISMS’), a database maintained by the Australian government.[9] The PRISMS database is the principal means by which registered course providers comply with legislative requirements relating to the monitoring of international students studying in Australia. Upon enrolling an international student into a registered course of study, the course provider enters the details of that enrolment into the PRISMS database. The database then records a Confirmation of Enrolment (‘COE’) for the student. The COE functions as a record of the student’s enrolment status in the course and as proof of enrolment for the purposes of clause 500.211 of Schedule 2 of the Regulations.
[8]Section 10 of the ESOS Act.
[9]See generally, Department of Education and Training, Provider Registration International Student Management System (PRISMS): Provider User Guide (Department of Education and Training, May 2018).