Alva Lopez (Migration) - [2025] ARTA 447

ALVA LOPEZ (MIGRATION) [2025] ARTA 447 (10 MARCH 2025)

DECISION AND

REASONS FOR DECISION

Applicant:Mr Johnny Anderson Alva Lopez
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2318166
Tribunal:General Member F Russo
Place:Sydney
Date:10 March 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 10 March 2025 at 5:54pm

CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – multiple enrolments cancelled – health issues – applicant changed to multiple vocational courses – no course deferral sought – decision under review affirmed

LEGISLATION

Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 116, 140, 189, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43

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 to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
On 1 November 2023 the delegate cancelled the visa under s 116(1)(b) of the Act on the basis that the applicant was not enrolled in a registered course of study from 6 September 2023 until the date of the delegate’s decision, and therefore did not comply with the enrolment condition of the Student visa.
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 9 November 2023. 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 (Cth) (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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal by video on 28 November and 11 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of interpreters in the Spanish (Central and South America) and English languages.
The applicant was represented in relation to the review. The applicant’s representative also attended the hearing by video.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

Under s 116(1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that a visa holder has not complied with a condition of the visa. However, the Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard to in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
There are currently no prescribed circumstances under s 116(2) requiring the visa not be cancelled, or under s 116(3) requiring the visa to be cancelled, that apply.
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 Regulations. If satisfied the applicant has breached condition 8202, the decision maker must proceed to consider whether the visa should be cancelled under s 116(1)(b). In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and reg 2.43A, and other matters of government policy.

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 applicant is a 50-year-old Peruvian national. His visa was cancelled by the delegate on the basis that he was not enrolled in a full-time registered course of study. The delegate’s reasons for decision, a copy of which the applicant provided to the Tribunal, indicate that the applicant was not enrolled in a registered course of study from 6 September 2022 until the delegate made their decision on 1 November 2023.
The delegate’s reasons for decision indicate that the Department sent the applicant a notice of intention to consider cancellation (NOICC) of the visa on 9 October 2023, and that the applicant did not respond to the NOICC. The Tribunal has access to the Department file, which contains a copy of the NOICC, which invited the applicant to comment in writing on both the cancellation grounds and the discretion to cancel the visa within five working days. There is nothing on the Department file to indicate that the applicant responded in writing to the NOICC.
At the hearing, the Tribunal used the procedure contained in s 359A of the Act to put to the applicant information from his Departmental Movement Details and his enrolment records from the Provider Registration and International Student Management System (PRISMS) database. The Tribunal put to the applicant that according to his Movement Details, he was granted a Student visa on 28 March 2022, which was cancelled on 1 November 2023. The Tribunal put to the applicant that the Student visa was subject to Condition 8202, which in addition to other things, required that he remain enrolled in a registered course.
The Tribunal also put to the applicant that his enrolment records from PRISMS indicate that he had the following enrolments in courses of study:
a.General English Course from 22 February 2021 to 18 June 2021, which is recorded as Finished;
b.General English Course from 12 July 2021 to 26 November 2021, which was cancelled on 9 February 2022 because of non-payment of fees;
c.Three enrolments in the Certificate III in Carpentry commencing on 9 August 2021, all of which were cancelled prior to the course start date due to changes to the CoE or the applicant’s student details;
d.A fourth enrolment in the Certificate III in Carpentry from 10 January 2022 to 7 January 2024, which was cancelled on 7 February 2022 due to non-commencement of studies;
e.General English from 7 February 2022 to 29 April 2022, which is recorded as Finished;
f.Certificate III in Commercial Cookery commencing on 16 May 2022 to 25 June 2023, which was cancelled on 6 September 2022 because of unsatisfactory attendance. The applicant also had enrolments in the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management which were cancelled on 6 September 2022 due to non-commencement of studies; and
g.The applicant also has listed an ‘Inactive’ enrolment for the Certificate IV in Business from 3 July 2023.
The Tribunal put to the applicant that the information from his PRISMS enrolment record and Movement Details is relevant because it indicates that he was not enrolled in a registered course of study from 6 September 2022 until the date of the delegate’s decision, while holding a Student visa.
The Tribunal also put to the applicant other concerns arising from the information in his PRISMS enrolment record which it indicated may be relevant to the Tribunal’s consideration of the exercise of the discretion to cancel the visa, the details of which are set out in my reasons below where relevant.
The applicant indicated that he understood the information the Tribunal had put to him and that he wished to comment on the information. The applicant’s subsequent responses demonstrated a poor understanding of the enrolment condition, including what is required to satisfy the enrolment condition. The applicant stated that he has two certificates for English language courses, which indicate that he has successfully completed those courses. The Tribunal informed the applicant that this is consistent with the information from his PRISMS record which indicates that he finished two English language courses. The Tribunal reminded the applicant that the first issue before it is whether he was not enrolled in a course of study from 6 September 2022 until 1 November 2023.
The applicant then told the Tribunal that he was enrolled in Carpentry, but changed his enrolment to English so he could then study Commercial Cookery. He stated that he had to stop studying Commercial Cookery as he had issues with the college’s ‘conflicting schedules’. He stated that he then applied to another college, but his application was rejected because he was still attached or registered with the previous college. He stated that he was therefore unable to get access to a new college.
The Tribunal again reminded the applicant that the first issue it had to consider was whether he had breached the enrolment condition of the Student visa because he was not enrolled in a registered course of study. The applicant then disputed that he had breached Condition 8202 and claimed that he remained enrolled. The Tribunal put to the applicant that this is not consistent with the information in his PRISMS record, which indicates that his enrolments were cancelled on 6 September 2022, and he did not subsequently enrol in another course of study. The Tribunal questioned whether the applicant has any documentary evidence to support his claim that he was enrolled after 6 September 2022. The applicant responded that he has the student ID issued by the college. The Tribunal explained to the applicant that a student ID card is not evidence that he was enrolled beyond a certain date, and put to him that although he may have been issued with a student card by an education provider, his education provider cancelled his enrolment in the Certificate III in Commercial Cookery on 6 September 2023 because of unsatisfactory attendance, and his other two enrolments which were part of the same package were also cancelled the same day. The Tribunal put to the applicant that it would need evidence of a CoE or other evidence that he was enrolled in a course, otherwise the Tribunal would make a finding that he was not enrolled in a course of study during the relevant period.
The applicant continued to insist that he remained enrolled and stated that he would have to go through his documents to see if he has evidence that he was enrolled.
The Tribunal adjourned the hearing until 11 December 2024 to allow the applicant time to produce evidence in support of his claim that he remained enrolled after 6 September 2022.
On 11 December 2024 the applicant provided the Tribunal with a statement dated 10 December 2024, a statutory declaration declared on 28 November 2024 and information regarding the applicant’s donation of a kidney to his brother in February 2020. I have considered the information contained in these documents, but find they do not contain information or evidence in support of the applicant’s claim that he was enrolled in a course of study in the period from 6 September 2022 to 1 November 2023. I note in particular the following text contained in the applicant’s written statement, in which he conceded that his enrolment was cancelled and that in 2023 he tried to obtain another enrolment, but could not obtain one:
In 2021, I enrolled in a VET course. Initially, I attended classes as scheduled, but I soon faced challenges with the school and my classes. I didn't feel comfortable with the school environment and attempted to switch to an afternoon schedule or transfer to another campus. However, the only available option was the campus in Parramatta, which I was not comfortable attending.
During this period, I experienced fear and uncertainty, and I was often worrying about my health and the possibility of falling ill again. My anxiety grew, and I realized that the transplant procedure was taking a toll on my mental well-being. Eventually, my absence from classes led to the cancellation of my Confirmation of Enrolment (COE).
In 2023, I tried to re-enroll (sic) in a new school to resume my studies. However, due to my previous school's refusal to release me from my first course, the new school was unable to process my admission. Unfortunately, this issue caused a lot of waste of time.
Currently, I am in contact with Lead College and I am in the process of trying to enroll (sic) in cookery and hospitality courses; so that I can gain an Australian qualification to strengthen my employment opportunities and support my family in Peru. I do not wish to return home empty handed.
I note also that the statutory declaration relates to the applicant’s attempts to enrol with Lead College in November 2024 and does not address the issue of whether there was a period of non-enrolment.
At the hearing on 11 December 2024, the Tribunal again explained to the applicant that the first issue before it was whether he had breached the enrolment condition of the Student visa because he had not been enrolled in a course of study from 6 September 2022 until 1 November 2023. The applicant responded that he remembered being enrolled and studying, but he did not complete the course. The Tribunal explained to the applicant that the evidence from his PRISMS record it indicates that his enrolments were cancelled on 6 September 2022 because of his unsatisfactory attendance of the Certificate III in Commercial Cookery, and again put to him whether he had any evidence that he continued to be enrolled after 6 September 2022. The applicant responded that he did not find any evidence, but he will look for it. The Tribunal explained to the applicant that it had already adjourned the hearing for two weeks to give him an opportunity to provide such evidence, and considered that he already had sufficient time to find supporting evidence.
The Tribunal invited submissions from the applicant’s representative, who submitted that the applicant said he was enrolled but has not been able to provide any evidence of that. The representative noted that, according to the applicant’s PRISMS record, it looks as though he was not enrolled for the relevant period.
The Tribunal considers the applicant was provided sufficient time to find and provide evidence that he continued to be enrolled after 6 September 2022. This included the adjourning the hearing for 14 days to allow the applicant to produce such evidence.
The applicant has produced no documentary evidence in support of his claim that he remained enrolled in a course of study after 6 September 2022. I give little weight to the applicant’s oral evidence that he remained enrolled after this date given it is inconsistent with the information contained in his PRISMS record. I prefer to accept the documentary evidence contained in the applicant’s PRISMS record, which indicates that the applicant’s enrolment in the Certificate III in Commercial Cookery was cancelled on 6 September 2022 because of unsatisfactory attendance, and his enrolments in the Certificate IV in Commercial Cookery and Diploma of Hospitality Management were also cancelled on 6 September 2022 because of non-commencement of studies. In the absence of any documentary evidence to the contrary or of any compelling evidence or explanation from the applicant, I accept the enrolment information contained in the applicant’s PRISMS record.
On the evidence before the Tribunal, the applicant was not enrolled in a registered course from 6 September 2022 to 1 November 2023, a period of over 13 months. Accordingly, the applicant has not complied with condition 8202(2)(a).
The Tribunal is therefore satisfied that the grounds for cancellation in s 116(2)(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 power to cancel the visa should be exercised. For temporary visas other than criminal justice and enforcement visas, there are certain workplace exploitation prescribed matters to which the decision-maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations.
The majority of the prescribed matters set out in reg 2.43A(2) refer to situations where a written certificate has been issued by a government or non-government entity. There is no evidence of such a certificate in the current case and those matters referred to are not relevant to the Tribunal’s consideration. The only exception is the matter set out in reg 2.43A(2)(d), which requires the Minister to have regard to 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.
The purpose of the Student visa granted to the applicant was to allow him to undertake full-time studies in Australia. As noted above, the applicant’s PRISMS record indicates that he was enrolled in a package course leading to the award of the Diploma of Hospitality Management, and that his enrolments in all three courses were cancelled on 6 September 2022. The applicant was not enrolled in a registered course of study from 6 September 2022 to 1 November 2023, a period of over 13 months.
I note that according to the applicant’s Movement Details, he was granted a Bridging visa E on 24 November 2023, which he continues to hold, and which is subject to Condition 8207, which does not allow the applicant to undertake any studies or training in Australia. I therefore make no adverse findings regarding the applicant not being enrolled in a course of study after the Student visa was cancelled on 1 November 2022.
On the evidence before the Tribunal, the applicant was not complying with the enrolment condition of the Student visa for a period of over 13 months. I consider the length of this period of non-compliance to be significant. I consider the enrolment condition of the Student visa is fundamental to the purpose of that visa, given the visa was granted to allow the applicant to undertake full-time studies.
As to whether the applicant is no longer seeking to comply with the purpose of the visa, I have taken into account the applicant’s evidence that he attempted to obtain another enrolment in 2023. I have also taken into account his stated intention to continue studying if the visa is not cancelled. At the hearing, the applicant stated that he makes a commitment to the Australian Government to study in Australia and to complete his ‘Cookery’ studies. I have also taken into account the applicant’s statutory declaration of 28 November 2024, in which he declares that he will adhere to Lead College’s course progress, attendance and payment policy and procedures. Following the hearing, the applicant provided CoEs for the Certificate IV in Kitchen Management commencing on 27 January 2025 and the Diploma of Hospitality Management commencing on 17 August 2026. These were created on 13 December 2024. I accept that there is evidence that the applicant would seek to enrol in another course of study if the Student visa is not cancelled. I have also considered the applicant’s previous record of study. I note the applicant’s successful completion of courses in General English in February 2021 and April 2022 and also take this into account.

Overall, I accept that there is some evidence that the applicant is seeking to comply with the purpose of the Student visa, however, I consider the length that the applicant was not complying with the visa to be of concern, and therefore give this consideration neutral weight, neither in favour nor against cancelling the visa.
Beyond the matters prescribed under reg 2.43A, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant in his evidence and written statement, and matters in the Department’s policy guidelines ‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’, as set out below.
The purpose of the visa holder’s travel to and stay in Australia, and whether the visa holder has a compelling need to travel to or remain in Australia
The applicant told the Tribunal that his purpose for travelling to, and for staying in Australia is twofold: he arrived to be a kidney donor for his brother, and he also wanted to study here. He stated that he chose to study Commercial Cookery because it is very popular in Peru. The applicant gave evidence at the hearing that he previously worked in sales in Peru.
In his written statement, the applicant states that he arrived in Australia in January 2019, holding a Medical visa, because his brother, who is an Australian citizen, required a kidney transplant, for which the applicant donated a kidney. The applicant states that his brother experienced health complications which required the postponement of the kidney transplant until February 2020. After the kidney transplant, the applicant was expected to undergo 6-monthly check-ups, and is now required to have yearly check-ups, with his next appointment being in July 2025. He states that the recovery process was long, and he was thinking about his future. He decided to undertake courses to improve his employment opportunities in the future and to help his family in Peru. He applied for the Student visa and started studying English. In 2021, he had an appendix operation, which went well. In 2021, he decided to enrol in a VET course. He states that initially he attended classes as scheduled, but he faced challenges with the school and his classes. He did not feel comfortable with the school environment and attempted to switch to an afternoon schedule or transfer to another campus, but the only available option was the campus in Parramatta, which he was not comfortable attending. He states that he experienced fear and uncertainty, as he often worried about the possibility of falling ill. His anxiety grew, with the transplant procedure taking its toll on his mental well-being. He states that his absence from classes led to his CoE being cancelled. He states that he tried to re-enrol in a new school and resume his studies in 2023, but his previous school refused to release him, so his new school could not process his admission. He states that he is in contact with Lead College and is in the process of trying to enrol in Cookery and Hospitality courses so he can gain an Australian qualification, strengthen his employment opportunities and support his family in Peru.
The Tribunal put to the applicant that his PRISMS record indicates that his enrolment in the Certificate III in Commercial Cookery was cancelled because of unsatisfactory attendance, and that he then remained unenrolled for a period of 13 years, which is a significant period of time to remain unenrolled. This may suggest that his purpose for staying in Australia is no longer to study. The applicant stated that his only purposes in staying in Australia are to study and to be with his brother. He stated that he has been in the same situation for a few years regarding the kidney transplant. He stated that he is living with his brother. He also stated that during the period in which he was not studying, he had some problems and did not understand things, and he would like one last chance to complete his studies.
I have considered the applicant’s Movement Details and the documents he has provided about the kidney donation he made to his brother. The applicant has provided a report from a Dr Kath Mac of Liverpool Hospital Renal Clinic, in which Dr Mac notes the applicant has been stuck in Sydney because of the COVID-19 pandemic and was considering applying for a Student visa. The report states that the applicant felt well and was without concern, although he had not had any blood or urine tests done because of his visa status. The report states that the examination of the applicant was unremarkable, and the applicant would be seen again in 6 months. The applicant also provided a pathology request form dated 24 March 2021.
I accept that the applicant donated a kidney to his brother in February 2020, and that he subsequently required six-monthly medical check-ups, which have now become yearly check-ups. I accept the applicant’s evidence that the next check-up is scheduled for July 2025.
While I have considered the applicant’s evidence regarding his purpose for remaining in Australia, I have concerns regarding the length of the period of non-enrolment from September 2022 to November 2023, as well as the reasons for the cancellation of his enrolments in September 2023. These suggest that the applicant’s purpose for remaining in Australia may be for reasons other than study. While I give some weight to the applicant’s enrolments in the Certificate IV in Kitchen Management and the Diploma of Hospitality Management at Lead College, I note that these CoEs were not created until 13 December 2024, after the hearing.
I have also considered whether the follow-up checks which the applicant requires as a result of donating a kidney in February 2020 represent a compelling need to travel to or remain in Australia. I do not consider that such follow-up checks, which currently occur on a yearly basis, are a compelling reason for the applicant to remain in Australia on a Student visa. Approximately five years have now passed since the applicant’s nephrectomy surgery, and on his own evidence, his current medical treatment consists of a yearly check-up. The applicant has provided no medical evidence to indicate that there are any ongoing issues which require treatment. The report of Dr Mac of 21 October 2020 indicates that the examination of the applicant approximately 8 months after the surgery was unremarkable and the applicant felt well and was without concern. The report also notes that the applicant was at that stage considering applying for the Student visa because he was stuck in Sydney as a result of the COVID-19 pandemic. No further medical records have been provided, other than a pathology request form from March 2021, which is required as part of the follow-up checks. The applicant has provided no reasons why future follow-ups cannot be conducted in his home country, particularly as there is no evidence of any ongoing treatment or complications. I note also that the applicant was granted Subclass 602 Medical Treatment visas on 31 August 2018, 26 March 2019, 22 May 2020 and 21 July 2020, the last of which ceased on 20 October 2020. The applicant subsequently applied for a Student visa to remain in Australia and was granted a Bridging visa on 20 October 2020, with his first Student visa eventually granted on 28 March 2022. If the applicant required further medical treatment beyond October 2020, the appropriate course would have been to apply for a further Medical Treatment visa, but there is no evidence that further treatment was required beyond the first follow-up check that Dr Mac performed in October 2020. I do not consider the yearly follow-up checks to be evidence of a compelling need to remain in Australia.
Overall, in considering the applicant’s evidence and his stated purpose of remaining in Australia to study, in light of the applicant’s overall enrolment record, including the length of his period of non-enrolment and the reasons for cancellation of the enrolments, I give this consideration only a little weight against cancelling the visa.
The extent of compliance with visa conditions
The applicant gave evidence that he has complied with the work condition of his visa. The applicant was otherwise unable to tell the Tribunal about the conditions of his Student visa, apart from stating one condition was ‘to complete all the courses’. The applicant demonstrated little awareness of the requirement to remain enrolled in a registered course or of the other requirements of the Student visa, claiming in his oral evidence that his student ID card was sufficient evidence that he remained enrolled despite the cancellation of his CoEs.
I have concerns that the applicant’s enrolment in the Certificate III in Commercial Cookery was cancelled because of unsatisfactory attendance, and that after the applicant’s CoEs were cancelled, he remained unenrolled for a period of over 13 months, which is a significant length of time to remain unenrolled while holding the Student visa. I note that Condition 8202 of the applicant’s Student visa required not only that the applicant remain enrolled in a registered course, but also that he maintain satisfactory attendance in the course and course progress for each study period. When questioned about whether he maintained satisfactory attendance, the applicant told the Tribunal that he was attending school, but after some days he started arriving five or six minutes late and was not allowed into the classroom. He stated that he had a problem with the class hours and that he didn’t have much communication with his college.
I do not find the applicant’s explanation of his non-compliance with the attendance requirement of the Student visa to be persuasive or satisfactory and therefore consider there is evidence of other issues of compliance with the conditions of the visa. I give this consideration weight in favour of cancelling the visa.
The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)
The applicant gave evidence at the hearing that his family in members in Australia include his brother, as well as a nephew and niece who are Peruvian national and are the children of a different brother. He has a spouse in Peru and a son who lives in Argentina. He also gave evidence that he financially supports his father in Peru.
When asked about the degree of hardship he and his family members would experience if the visa is cancelled, the applicant stated that there would be an emotional hardship for his brother in Australia. It will also result in hardship for his family in Peru, because being in Australia means the opportunity to be someone. Not completing his qualifications will be a disappointment to his family. It will also result in emotional hardship for the applicant himself and affect his future employment prospects in his country.
The Tribunal accepts the applicant and his family will suffer some hardship of the visa is cancelled, including psychological and emotional hardship. I accept that this may be particularly difficult for the applicant’s brother, to whom the applicant donated a kidney in 2020, and who the applicant claims assisted him in applying for the Student visa. I accept that the applicant has a close emotional bond with his brother in Australia as a result of his donation of a kidney, in addition to any other emotional bonds as brothers. I accept that there may also be psychological and emotional hardship for the applicant and his other family members. I also accept that there may be some financial difficulty for the applicant and his family, including the lost opportunities as a result of not being able to progress a career in the hospitality industry, as well as the financial costs of his studies to date. I give this consideration some weight against cancelling the visa.
The circumstances in which the ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence. The guidelines indicate that as a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control
The Student visa was cancelled because the applicant was not enrolled in a registered course of study from 6 September 2022 to 1 November 2023, a period of over 13 months. The applicant’s PRISMS record indicates that his enrolment in the Certificate III in Commercial Cookery was cancelled on 6 September 2022 due to unsatisfactory attendance. The enrolment was cancelled less than four months after the course start date.
As noted above, in his written statement to the Tribunal, the applicant claims that he attended classes as scheduled, but faced challenges with the school and his classes, and he did not feel comfortable with the school environment. He claims he attempted to switch to an afternoon schedule or transfer to another campus. He states that he also experienced anxiety and fear as a result of worrying about his health, and that his CoE was cancelled because of his absence from classes. He states that he tried to re-enrol in 2023, but could not do so because his school refused to release him from his ‘first course’.
When questioned at the hearing about the circumstances in which his CoEs were cancelled, the applicant stated that after some days he started arriving at his college five to six minutes late and was not allowed to enter the classroom. He stated that he had a problem with the hours. He also stated that he did not have much communication with his college. When asked whether there were any other reasons for the cancellation of his CoEs, he responded no.
The Tribunal put to the applicant that the circumstances in which the ground for cancellation arose do not appear to have been beyond his control, and that he had provided no evidence in support of his claims, such as his attempts to obtain enrolments with other colleges or his attempt to be released from his then-current college. The applicant responded that he had told the Tribunal what he could remember, and he had a lot of problems because of an operation he had on his appendix. He stated that he had a lot of emotional fears and was focusing on his health. He stated that he has been speaking to his brother and is recovering from that situation. The Tribunal put to the applicant that if he was unwell, he could have sought deferral of his enrolment from his college, but there is no evidence to indicate that he had a health condition which made him unfit for studies in 2022 or after that. The applicant stated that he had the appendix operation in 2021, and that after that he was sensitive to any pain he had in his back, which caused him fear.
I have accepted the medical evidence the applicant has provided but note that he has provided no evidence of any treatment after February 2020, other than evidence of follow-up appointments and tests arising from the nephrectomy. While I accept that the applicant may have ongoing fears as a result of the nephrectomy and his subsequent appendix operation in 2021, there is no evidence to indicate that he has been diagnosed or treated for a mental health condition or any other health condition after 2021 which made him unfit to attend his course or to study. I find the applicant did not give a reasonable explanation for the cancellation of his CoE in September 2022 because of unsatisfactory attendance. While I note the applicant’s claim that the timetable did not suit him and he tried to move his classes to an afternoon timetable, the purpose for which the Student visa was granted was so the applicant could engage in full-time studies, and I give little weight to the applicant’s inability to balance his study commitments with any other commitments he had. I find the applicant has provided insufficient evidence to indicate that the circumstances in which the ground for cancellation arose were beyond his control. The Tribunal considers that if the applicant was unable to study or attend classes because of health reasons, he could have sought a deferral of his course. I also place little weight on the applicant’s claim that he attempted to enrol in another course. The applicant’s evidence in this regard lacked detail and he has provided no evidence in support of such claims. I give this consideration weight in favour of cancelling the visa.
The past and present behaviour of the visa holder towards the Department
The applicant told the Tribunal that he has always been respectful of the rules and laws of Australia. There is nothing on the Department file to indicate that there are any issues with the applicant’s behaviour towards the Department, although the applicant did not respond to the NOICC sent by the Department. The Tribunal gives this a little weight against cancelling the visa.
Whether there would be consequential cancellations under s 140 of the Act
The applicant confirmed at the hearing that there are no persons in Australia whose visas would, or may, be cancelled under s.140 of the Act as a result of the cancellation of the visa. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Mandatory legal consequences to the cancellation of the visa
The applicant did not provide any comments or evidence regarding this matter at the hearing, though he indicate that he understood the legal consequences. The Tribunal notes that cancellation of the visa would mean the applicant no longer holds a valid visa, which could lead to the applicant becoming an unlawful non-citizen. He would be liable for detention and removed from Australia pursuant to s 189 of the Act, however, he could apply for a Bridging visa in order to settle his affairs in Australia.
The Tribunal is mindful that a visa cancellation could also mean the applicant might face difficulties in being granted further visas in Australia, and that he could also be subject to a three-year exclusion period unless he meets relevant Public Interest Criterion. However, these are the normal consequences of breaching visa conditions. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation
There is no evidence that the applicant has any children in Australia. He gave evidence that he has a son who lives in Argentina. There is no information before the Tribunal to indicate that any of Australia’s international obligations would be breached as a result of the visa cancellation. The Tribunal weighs this factor neither in favour nor against cancelling the applicant’s visa.
Any other relevant matters
When asked if there are any other relevant matters, the applicant told the Tribunal that if he is given the opportunity, he is committed to focusing on his studies. I have already taken this into account in considering the applicant’s purpose for remaining in Australia and do not need to consider it again. The Tribunal is not aware of any other relevant matters in addition to what it has considered above. The Tribunal gives this matter no weight in favour or against the visa cancellation.
In assessing the circumstances as a whole, I note that I have given weight in favour of cancelling the visa when considering the extent of compliance and the circumstances in which the breach occurred, and this outweighs the smaller weight I have given to certain considerations against cancelling the 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 Subclass 500 (Student) visa.

Date(s) of hearing: 28 November and 11 December 2024
Representative for the Applicant: Mr Mehmet Celepci (MARN: 0636137)

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.

Failure to comply with written commitment

(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.

Other powers or duties to cancel

(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.