BALAKRISHNAN (Migration) - [2025] ARTA 923

BALAKRISHNAN (MIGRATION) [2025] ARTA 923 (19 MAY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr THARSHAN BALAKRISHNAN
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2319021
Tribunal:General Member P Hunter
Place:Sydney
Date:19 May 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 19 May 2025 at 5:03pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered course – ground for cancellation conceded – divorce, mental health, COVID restrictions and physical health – visa and study history – previous courses in different subject areas not completed – new enrolment in different subject area made shortly before hearing – no current mental health treatment – availability of courses in home country – siblings in Australia, home country and third country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359A
Migration Regulations 1994 (Cth), r 2.43(2)(d), Schedule 8, condition 8202(2)(a)
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(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant was found not to have complied with a condition of his visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
On 4 March 2025, the applicant was invited to appear before the Tribunal via MS Teams video, on 11 April 2025. On 9 April 2025, the applicant wrote to the Tribunal requesting that the hearing be rescheduled until mid-June 2025. He claimed that he had been going through a distressing personal crisis following the end of a long-term relationship and it had significantly impacted on his mental and emotional health. The applicant claimed that he was under current medical care and had been prescribed anti-depressants and sleeping medication. He attached to the decision a pathology request dated 1 November 2024.
The Tribunal did not agree to postpone the hearing until 1 June 2025, given the lack of supporting evidence. However, it agreed to reschedule the hearing until 1 May 2025, and the applicant was advised that any further request for postponement would need to be accompanied by relevant medical evidence.
The applicant appeared before the Tribunal on 1 May 2025, via MS Teams video to give evidence and present arguments. The applicant was represented in relation to the review, although his representative did not attend the Tribunal hearing. The applicant told the Tribunal at the hearing that he was not currently taking medication, he said that he did visit a doctor in November 2023, and obtained a prescription for anti-depressants and sleeping aids. He took the sleeping aids for about a month and the anti-depressants for about three months. When asked if he was mentally fit to conduct the hearing the applicant confirmed that he was. When asked if there was any impediment to him participating in the hearing the applicant said that there was not any. The Tribunal considered that his responses to questions were appropriate, he was engaged and alert throughout the hearing. The Tribunal is satisfied that he had a reasonable opportunity to participate and to provide evidence and submissions in relation to his review application.
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 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 s 116(1)(b). 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 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).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. 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 other matters of government policy.
Background
The applicant is a 33 year old male national of Sri Lanka. He was granted the visa on 5 November 2022 which was valid until 2 April 2025. At the time the applicant was proposing to undertake studies in Certificate IV in Kitchen Management.
On 30 October 2023, a delegate of the Minister, sent to the applicant a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, because the Provider Registration and International Student Management System (PRISMS) records of the applicant indicated that he had not been enrolled in a registered course since 10 March 2023. The applicant was advised that this may be a breach of condition 8202(2)(a) of his visa and it may form a ground for cancellation of his visa. The applicant was invited to provide comment to the Department.
On 13 November 2023, the applicant provided submissions in response to the NOICC and the following documents;
·An email dated 19 March 2020, regarding the suspension of flights by Air Asia
·Travel itinerary for the applicant 27 March 2020, Sydney to Colombo
·Marriage registration or the applicant, 15 September 2019
·English translation of Decree Nisi lodged with the court by the applicant’s wife on 24 July 2020
·English translation of Decree Absolute of marriage, dated 27 November 2020
In his submissions the applicant set out the following information:
i.Until 2019 he was in a relationship for almost 10 years. They married in 2019 and the relationship ended in October 2020. He went through depression which was made worse by COVID associated lockdowns. He had been unable to return to Sri Lanka in March 2020, but was unable due to COVID restrictions.
ii.He was living with his brother who is a doctor and an Australian citizen but his brother could not accept that he was depressed. They had arguments and his personal problem was affecting his brother as well. He moved into a new house. He has not been able to visit Sri Lanka, and he did not focus on his studies.
iii.He applied for the student visa in December 2022 to start a new course. After he obtained the visa he was not interested in the course. He did not even go to orientation to register for his course. He really wanted to go to Sri Lanka and give up on his life in Australia, but he did not have any money to travel.
iv.In May 2023 he came down with Shingles and this affected him for three weeks. He became physically and mentally weak. His brother in Australia, who is a GP, supported him. When he resumed work he could not do night shifts anymore and had to leave his job. Since then he had not worked. He gave up on himself and was totally in the worst phase of his life. His brother had spent a lot of money on his studies which he had wasted.
v.Everyone in his family was doing well but he was struggling to live a normal life. He just wanted to complete a degree or diploma in Australia and then he was happy to go back to Sri Lanka and build his future. Given the chance he would enrol in a course and progress.
The delegate was satisfied with the material before them that the applicant had not complied with condition 8202(2)(a) of his visa. The delegate considered the submissions of the applicant, however they found that the particular circumstances favoured the exercise of the discretion to cancel, and on 15 November 2023, determined to cancel the visa pursuant to s 116(1)(b) of the Act.
On 22 November 2023, the Administrative Appeals Tribunal (AAT) received an application for review from the applicant together with an extract of the applicant’s passport and a copy of the decision record of the delegate.
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.
In anticipation of the Tribunal hearing the applicant has submitted evidence of his flight cancellations in March 2020 and documents pertaining to his marriage and divorce which were previously provided to the Department. The applicant also submitted the following additional documents:
·A Confirmation of Enrolment (CoE) in a Graduate Diploma of Management (Learning) with course dates from 8 April 2025 to 29 December 2025, created on 22 April 2025
·A letter from Dr Sharmin Sultana dated 24 April 2025, recording that the applicant consulted a colleague on 1 November 2024 for a mental health condition. He was prescribed anti-depressants and a sleeping pill for is condition.
Following the Tribunal hearing the applicant submitted a CoE in an Advanced Diploma of Information Technology with course dates from 1 January 2024 to 29 December 2024, created on 18 December 2023.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant confirmed to the Tribunal at the hearing that the visa under review was the third student visa he had held. He further confirmed that he was aware that there were conditions applied to his student visa, and that one of those condition was that he maintain enrolment in a full-time registered course of study. He did not dispute that he was not enrolled in full time study from 10 March 2023 up until his visa was cancelled.
The Tribunal has had regard to the material before it, the applicant’s concession at hearing and in his representations to the Department and Tribunal, together with the applicant’s PRISMS records, relevant details of which were disclosed to the applicant in the NOICC. On the evidence before the Tribunal, it finds that the applicant was not enrolled in a full time registered course between 10 March 2023 and 14 November 2023. Consequently, the Tribunal finds that the applicant has not complied with condition 8202(2)(a).
For temporary visas other than bridging, criminal justice and enforcement visas subject to a ‘restricted work condition’, the decision-maker is not to cancel the visa under s 116(1)(b) of the Act if prescribed circumstances exist: s 116(2) and reg 2.43B of the Regulations. The prescribed matters are set out in the attachment to this decision, and relate to circumstances where there is a written certification by a ‘certifying entity’ in relation to the visa holder in respect of a ‘workplace exploitation matter’. These prescribed matters are not relevant in this particular case.
It follows that the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As this ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
At the time of the decision of the delegate there were no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However due to the advent of the Migration Amendment (Strengthening Reporting Protections Regulations 2024(Cth) which introduced a new reg 2.43A, there are now prescribed workplace exploitation matters that a decision maker must have regard to in determining whether to cancel certain temporary visas including student visas. The Amending Regulation commenced on 1 July 2024, and apply in relation to a breach of a visa condition that occurred before, on or after 1 July 2024. In the absence of evidence that the applicant has been involved in a ‘workplace exploitation matter’ which is prescribed under regs 2.43(2)(a) and (b), they are mostly not relevant to the Tribunal’s assessment in this particular matter. However, reg 2.43(2)(d) still operates.
Reg 2.43(2)(d) Whether there is any evidence that the visa holder is not complying, or is no longer seeking to comply with the purpose of the visa
The purpose of the student visa is to permit a holder to engage in approved study in Australia and obtain desired qualifications. The requirement of condition 8202(2)(a) goes to this core purpose of the visa. The evidence in the present case is that the applicant was not enrolled in a registered course between 10 March 2023 until the visa was cancelled on 15 November 2023, a period of 8 months. Further, the applicant confirmed that he did not actually start his course which commenced in January 2023.
The visa under review is the third student visa granted to the applicant. His evidence to the Tribunal was that he had initially proposed studies in IT while holding his first visa. He had difficulties with this course and did not complete as scheduled. While holding his second student visa he switched to business/accounting, but again the applicant did not complete these studies. With the visa under review he proposed studies in Kitchen Management which he did not even commence. The Tribunal identified to the applicant that it appeared that he had demonstrated a past pattern of not completing his studies which may not be considered consistent with the purpose of his visa.
The Tribunal discussed with the applicant the CoE he had submitted in the Graduate Diploma of Management (Learning) submitted pre-hearing, he was asked why he wanted to complete this course and he said that he knew that he was not going to be able to stay long term in Australia but he just wanted to complete a diploma so that he could have something to start with when he returned to Sri Lanka. After some discussion it became apparent that what the applicant actually wished to do was return to studying the Advanced Diploma of Information Technology. He claimed to have attempted this course while awaiting review by the Tribunal and he attempted 6 subject in this course and submitted assignments and passed 3. He claimed that he continued to attend classes in this course until August 2023. He did not have any reason for the Tribunal his lack of progress in the course..
Pursuant to the provisions of s 359A of the Act the Tribunal identified to the applicant information on his Departmental Movement records that indicated while holding the bridging visa he had permission to study while awaiting review. Yet on his evidence he had made limited progress in the Advanced Diploma of Information Technology. The Tribunal informed the applicant that the information was relevant because he was submitting to the Tribunal at hearing that he just needed one more chance to complete a diploma yet, if the Tribunal relied on the information that he had been able to study while awaiting review and still not progressed academically, it may have doubts as to whether he intended to comply with the purpose of the visa in the future. The applicant said that he knew that he did not have any future in Australia. He just needed six to eight months and he would definitely complete his studies and then return to Sri Lanka.
Overall, it is considered that the applicant has not complied with the purpose of the visa in the past, and given his lack of progress in IT studies while awaiting review and the fact that he had now changed to a different course, the Tribunal holds considerable concern as to whether he will comply with the purpose of the visa in the future.
It is considered that this factor weighs in favour of the exercise of the discretion.
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel or remain in Australia
This consideration is similar in part to the mandatory consideration in reg 2.43(2)(b), the purpose of the applicant’s temporary stay in Australia was so that he could undertake approved study in a full time registered course. The applicant has been in Australia since 2016 and has not yet achieved any qualifications, and only completed a six week general English course The applicant was not enrolled in a registered course for 8 months and he did not attempt the courses he proposed when he applied for the visa. On his evidence to the Tribunal and submissions to the Department, he appeared to have limited interest in the courses for which he sought the visa.
The applicant has post hearing submitted evidence of a CoE in the Advanced Diploma of Information Technology. He claimed, and the Tribunal accepts, that he had completed two subjects in this course out of six attempted and that he engaged with the course for about eight months of its 12 month duration. He did not continue to study between August 2024 up until proximately the time of the Tribunal hearing. The Tribunal asked the applicant about his reasons for postponement of the first hearing and he confirmed that the relationship breakdown referred to in the submissions was the end of his marriage in 2020. He said that he had not sought any mental health treatment since November 2024, and he was not engaging in any current treatment. He believed that the anti-depressants prescribed in December 2024, which he continued to take for approximately 3 months, have assisted his depression. He confirmed that he also had a blood test at the time. This referral was the evidence that he submitted to the Tribunal when he sought the hearing postponement. He confirmed that nothing unusual was discovered in his blood test. When asked why he had a compelling need to study the Graduate Diploma of Management (Learning), the applicant offered that the more qualifications he had when he returned to Sri Lanka would be helpful. The Tribunal holds concern about his past commitment to his studies and whether he has demonstrated by his behaviour that he intends to commit to study and obtain his intended qualifications, consistent with the purpose of the visa.

When asked whether he had a compelling need to remain, the applicant said that if he did not even have a diploma it would be very hard to return to Sri Lanka. He would have been in Australia for ten years without achieving a qualification. He said that he just wanted a Diploma and then he would be able to have something to start with and build a career. The applicant conceded that he could study in his home country and that it would be cheaper to obtain qualifications however he said that he was already 33 years old, and he would be competing with younger people in their early 20s. The applicant said that it would be so hard for him to start again. It is considered that these are reasons that the applicant does not want to return to Sri Lanka, it is not satisfied that these are compelling reasons for the applicant to remain in Australia. He has had a considerable amount of time to undertake and complete studies.
The Tribunal considers that this factor weighs in favour of the exercise of the discretion to cancel the visa.
The extent of compliance with visa conditions
The applicant told the Tribunal that other than his failure to maintain enrolment and the non-compliance with condition 8202(2)(a), he had complied with other conditions of the visa.
The Tribunal accepts that there is no other information available in the Department file about non-compliance with visa conditions.
The Tribunal gives this factor some weight in in favour of the applicant.
The degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)
When asked about particular hardship he would experience if the visa remained cancelled the applicant said that everyone was doing well in his family. His elder brother was a GP and Australian citizen, his second elder brother had a good job in Sri Lanka, his sister was living in New Zealand she had a degree in IT, even his younger brother was able to come to Australia on a graduate degree and he was a civil engineer. He said that he was struggling with his studies and if at least he could complete a course in Australia it would help him to start a job in Sri Lanka or any other country.
The applicant spoke often during the hearing of completing qualifications in IT and his proposed Graduate Diploma of Management (Learning) if he had his student visa reinstated. Considering his past performance the Tribunal holds concerns whether the applicant can achieve this outcome. However, the Tribunal accepts that he will be distressed not to have achieved qualifications in Australia.
The applicant said that he had reconciled with his brother who was a GP, and had returned to live with him in the past month. He had another brother in Australia but claimed he was not really able to talk about his issues with his family. He claimed that he did not really have many friends in Australia and had not built a life here, and when he had his qualifications he would be happy to return to Sri Lanka because he did not intend to remain. He was currently working as an Uber X driver. On the evidence the applicant does not have strong family, social or employment ties to Australia, which would cause additional hardship if he was required to return to Sri Lanka.
The Tribunal gives this factor a little weight in favour of the applicant.
The circumstances in which ground of cancellation arose.
The applicant said that his enrolment was cancelled because he did not attend the college at all. He told the Tribunal that the only thing he did was an entrance exam, he did not even attend his course orientation. All he could do was focus on his work, he was working for Australia Post.
The applicant told the Tribunal that he was depressed and then he contracted Shingles and he did not go to work for a while, and after that he could not get back on track. He was just sitting at home from April to June 2023, totally stressed out. He lost his job. He claimed that he did not realise what was happening around him at that time.
He attributed his depression to the breakdown of his relationship. He was married in September 2019, but by January 2020 his wife was already talking about divorce. He was studying IT and had tried to return to Sri Lanka in March 2020, but his flight was cancelled due to the pandemic. His wife stopped talking to him and then she applied for divorce and in October 2020, he became aware the divorce had proceeded in his absence. He also withdrew from his family, even his brother with whom he was living. He went to a GP and started taking anti-depressants and sleeping tablets but only took the medication for about a month. In 2021 he moved out from his brother’s house to Marayong. He then was studying accounting/business. At the beginning of this course he was going for maybe 6 months to his classes but then he stopped going, he was just focused on his work for Australia Post. In February 2022 he could not even return to Sri Lanka for his brother’s wedding. Around this time he also learned that his wife had remarried.
At the end of 2022 when his student visa was again expiring the applicant still did not wish to return to Sri Lanka. He said that he applied for the visa under review, and switched from accounting to kitchen management, because he knew at the time he could not study something difficult. He thought that the course would be easy and all he would have to do was turn up. He believed that he had long-term depression.
When asked what steps he took to address his health, the applicant said that he did not seek any medical treatment for his Shingles he obtained assistance from his brother. He claimed he had photographs related to his illness. He also did not seek any treatment for depression between 2020 and November 2024. When asked why not, the applicant said that he did not believe that medical assistance would be of any benefit. When he obtained assistance and took tablets for a month in early 2020, he did not get better, so he did not think it would help him. It was put to the applicant that his brother was a GP and had resources to assist him. The applicant said that he did not talk to his brother about these things or seek help from him for medical things. This is difficult to reconcile with the claim that he took advice from his brother for his Shingles.
In November 2023, the applicant said that he sought medical assistance and was once more prescribed anti-depressants and sleeping pills. This time he took the sleeping pills for about a month and the anti-depressants for three months. He believed that they worked this time as he followed the prescribed treatment regime and because he believed that he was already on the road to recovery.
Considering the evidence, and submission, the Tribunal accepts that the end of his marriage in 2020, after being in a long term relationship would have been distressing for the applicant and had a significant emotional impact. The applicant however applied for the visa under review in December 2022, on his evidence he wanted to study something easy that would assist him to remain in Australia. He did not attend his course and it does not appear that he made any effort to undertake study. It is not satisfied that these were circumstances outside his control. The Tribunal notes his claims about depression, but the applicant was able to engage in employment for much of the time he claimed to be severely depressed. In the absence of medical evidence the Tribunal cannot be satisfied that his medical conditions prevented the applicant from complying with his visa conditions for much of the period during which he was not enrolled.
The Tribunal considers that this factor weighs in favour of the exercise of the discretion to cancel the visa.
The past and present behaviour of the visa holder towards the Department
There is no evidence that the applicant had not been cooperative in his dealings with the Department.
The Tribunal attributes this consideration a little weight in favour of the applicant and against the exercise of the discretion.
Whether there would be consequential cancellations under s 140
There are no dependent family members included with the grant of the applicant’s visa. There will not be any consequential cancellations if the applicant’s visa is to remain cancelled.
There is no weight attributed to this factor.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory legal consequences that may apply in the case of visa cancellations. These include restrictions on obtaining a further visa, particularly if the visa remained cancelled the applicant may be subject to a restriction under s 48 of the Act which would limit the which would limit further visa applications while the applicant remained onshore. Further, due to the operation of PIC 4012, the applicant may also be unable to be granted further visas to Australia offshore for three years from the date of cancellation.
These legal consequences are the intended and legitimate consequences of a visa cancellation. The applicant was invited to address the Tribunal as the consequences of cancellation and he conceded that there was nothing exceptional or unusual about his circumstances. The Tribunal is not satisfied that these intended consequences of cancellation would impact on the applicant in way that weighs in favour of the applicant and against the exercise of the discretion.
The applicant also confirmed for the Tribunal at the hearing that if he had exhausted all his legitimate options of review he would abide by the lawful direction of the Department to depart. Consequently, the Tribunal is satisfied that the possibility of the applicant being detained is remote.
The Tribunal is not satisfied that this factor weighs in favour of the applicant and gives this factor neutral weight.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a citizen of Sri Lanka. He said that he did not have any concerns about returning to home country in general but was afraid to return without a qualification after the time he had spent in Australia. The applicant did not maintain, and there is no evidence before the Tribunal, that Australia’s international obligations would be breached by the cancellation of the applicant’s visa. The applicant has no children whose interests would be affected. He said that he was only afraid of returning to India as a failure.
The Tribunal gives this factor no weight in the consideration of the exercise of the discretion.
Any other relevant matters
The were no other relevant factors identified to the Tribunal.
Conclusion
The Tribunal has considered all of the evidence and the relevant circumstances of the applicant, individually and cumulatively. Overall, it is considered that there are limited aspects in favour of the applicant. Although it is accepted that the applicant has cooperated with the Department, and the applicant will experience some hardship, these factors favourable to the applicant are generally considered of low weight. The breach of condition 8202(2)(a) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. The applicant’s actions have not in the past been consistent with that purpose, and it is not demonstrated to the Tribunal on the material before it that the circumstances which gave rise to the cancellation were outside the control of the applicant or that the applicant has a compelling need to remain in Australia. Overall the Tribunal is satisfied that the relevant factors and considerations weigh in favour of the exercise of the discretion to cancel 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:  1 May 2025
Representative for the Applicant:       Mr RINKU SHARMA
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.