Chow (Migration) - [2025] ARTA 1624

CHOW (MIGRATION) [2025] ARTA 1624 (5 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Rebecca Jia Yi Chow
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2320800

Tribunal:General Member B Butler
Place:Melbourne
Date: 5 August 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 05 August 2025 at 3:12pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – ground conceded – discretion to cancel visa – COVID lockdowns, online study, anxiety on return to classes and deferment – unsatisfactory progress and enrolment cancelled – other enrolments rejected and recent new enrolment in different subject area – psychologist consultations – mandatory legal consequences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), r 2.43A, Schedule 8, condition 8202(2)(a)
CASE
Xiong v MICMSMA [2021] FCCA 1075
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The applicant was granted a student visa on 7 November 2022, with an expiry date of 15 March 2024.[1] The delegate cancelled this visa on 13 December 2023 on the basis that they found that the applicant did not comply with a condition of her visa, condition 8202(2)(a), which required her to maintain enrolment in a full-time registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
[1] See the delegate’s decision.
On 19 December 2023, the applicant applied to the Administrative Appeals Tribunal (‘AAT’) for a review of the delegate’s decision to cancel the visa.
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 on 4 August 2025 to give evidence and present arguments.
The applicant was represented in relation to the review.
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 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 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, 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 by the delegate on the basis that she was not enrolled in a full-time registered course.
The applicant was enrolled in Bachelor of Health Sciences at the University of Queensland. Her enrolment was cancelled on 20 March 2023 on the basis of unsatisfactory course progress.
The Department sent the applicant a ‘notice of intention to consider cancellation’ (NOICC) on 15 November 2023. The applicant responded to the NOICC on 23 November 2023. In her response, the applicant stated that she was a student at the University of Queensland, but her enrolment was cancelled due to unsatisfactory academic progress. She explained that she started her degree in 2019 and enjoyed the first year but struggled to stay motivated in 2020 when the studies were shifted online and that being in lockdown took a toll on her mental health which affected her studies. She failed multiple courses and could not share with her family that she was struggling as she was concerned that they would be disappointed in her. She realised that she was struggling to complete her degree because she was not interested in it. She stated that she has always wanted to study midwifery and applied to change her degree of the start of the year (i.e., the beginning of 2023) but her application was denied many months later as she did not meet the IELTS (English language) requirement. She stated that she intended to retake her IELTS in the same month (i.e., November 2023) and apply again to the University of Queensland and also to other universities in Queensland, and she will also submit an appeal to the University of Queensland to reenrol in health sciences for semester 1 of 2024 to continue her studies if her applications are not accepted. She went on to state that her family consists of her mother and her sister, and that they were living in Australia and that she could not imagine being away from them and having to explain her situation from them, which she had hidden from them.
In her response to the NOICC, the applicant has acknowledged that her enrolment was cancelled due to unsatisfactory course progress. At the hearing, she also stated that she was not enrolled in a full-time course.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 20 March 2023. Accordingly, the applicant has not complied with condition 8202(2)(a).
Consideration of discretion
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.
Prescribed matters
For temporary visas other than criminal justice and enforcement visas, there are 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 prescribed matters are set out in the attachment to this decision.
Regulation 2.43A(2)(d) requires a decision-maker to consider 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. Having regard to the delegate’s decision, there is evidence that the applicant was not complying with a condition of her student visa, condition 8202(2)(a), from 20 March 2023, when she was no longer enrolled in a full-time registered course, until 13 December 2023 when the delegate cancelled the visa. I find that this period of time of non-compliance is significant and weighs in favour of cancelling the visa.
The applicant also gave evidence at the hearing that she is enrolled in a Diploma of Community Services (with a course start date of 28 July 2025 and course end date of 25 July 2027), and that she would like to comply with the purpose of the student visa by completing a course in Australia. She said that she had been trying to enrol in a course, but nothing had come up for her, her representative referred her to the course provider, and she selected the course because it was similar to her Bachelor of Health Sciences. However, she has also stated that she was not interested in the Bachelor of Health Sciences and that she wished to pursue a midwifery course. I note that enrolment in the Diploma of Community Services commenced one week prior to the hearing. I have considered the recent enrolment; however, it appears that she may have enrolled in it for the primary purpose of having an enrolment prior to the Tribunal hearing. According, I only place limited weight against cancelling the visa in this regard.
None of the other matters in regulation 2.43A are relevant to the matter as there is no evidence of the applicant being involved in a workplace exploitation matter.
Other considerations
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, and matters in the Department’s policy guidelines ‘General visa cancellation powers’ (s 109, s 116, s 128, s 134B and s 140)’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
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
The applicant entered Australia in 2016 to study as a high school student. She completed half of year 10 and also year 11. In 2018 she studied a foundation year program for the University of Queensland, and secured a direct admission into a Bachelor of Health Sciences. She commenced the Bachelor of Health Sciences in 2019. She said from 2019 until 2023 she was studying this course. She confirmed that the course is a three-year course when studied full time. She said that she completed her studies in 2019 (two semesters), failed some subjects and repeated them in the following semester. She said that in 2020, when the covid lockdown happened, she struggled with online learning, and when in-person classes resumed she struggled with anxiety and missed lectures and tutorials.
According to the delegate’s decision, on 22 April 2022, the applicant was granted a deferment for compassionate or compelling circumstances, with a deferment period of 31 March 2022 to 30 June 2022. She said that the university decided that she needed a deferment in 2022. I asked her whether she studied in 2022. She said she did not think she studied in 2022, and that she started working around February 2022. The applicant gave evidence that she worked as a casual employee for two to three days a week at a bubble tea shop. She said that she thought she worked around 2022 to 2023, for less than a year, and that she quit the job when she returned to Singapore. I asked why she returned to Singapore. She said that it was around the time her visa was cancelled, in December 2023, and that she went to Singapore for a week to visit family. She recalled receiving the NOICC and then returning to Australia. She said that when she returned to Australia, she was questioned at the airport about why she held an electronic travel authority and a student visa. She said that she knew her enrolment was cancelled and that it would affect her student visa so she had tried to return to Australia on an electronic travel authority. She noted that she still held a student visa at the time of her return.
I asked her whether she returned to her course in 2022 after the deferment period lapsed in June 2022 and she said that she thought she did, that her results were not satisfactory, and she was required to show the university why they should allow her to continue with her enrolment. She said that she received the decision to cease her enrolment in early 2023.
I noted that, based on her evidence, she was able to work despite not being able to attend classes. She also did not seek medical assistance around the time she was struggling with her course. She also did not inform her mother, and her mother found out about the cancellation in January 2024.
Her mother returned to Singapore in January 2024, after her mother’s visa was cancelled. The applicant said that her mother had travelled to and from Australia on a number of occasions because the applicant and her sister were studying in Australia, and the visa was cancelled because she had spent too long in Australia. I asked whether she had considered returning to Singapore with her mother. She said that she wanted to study in Australia to finish what she had started.
The applicant has stated that she tried to enrol in courses since her enrolment was cancelled on 20 March 2023. This includes in October 2023 (a Diploma of Health Care which was rejected because of her visa status), in May 2025 (a Diploma of Nursing which was rejected because of concerns due to the genuine student requirement) and mid 2025 when she approached two providers who did not proceed with enrolments because she holds a bridging visa. At the hearing, she said that she had tried to enrol in a midwifery course at the University of Queensland but was rejected because of her IELTS score. She provided an IELTS result for a test undertaken in January 2025. On 29 July 2025, she commenced a Diploma of Community Services. When asked why she enrolled in the course in the week before the hearing, she said that she had been trying to enrol in a course and nothing had come up for her. Her representative gave her the offer, and the course is similar to what she had been doing. I asked her why she had not enrolled in this course earlier. She said she is not good at asking for help and she did not take any action. She has also returned the ‘Request for Student Visa information’ form which is generally provided in student visa refusal matters and has provided some information about the course. I have had regard to the information in this form.
The applicant said that she has seen a psychologist four times this year and is awaiting an appointment with a psychiatrist. I accept that the applicant has taken some action towards addressing her mental health concerns. She also said that she was diagnosed with ADHD when she was younger and lived in Singapore; she has not taken medication in relation to this condition since coming to Australia to study.
I acknowledge the applicant’s difficulties in studying the Bachelor of Health Sciences. She has stated that her studies were disrupted because of online learning during the Covid period in 2020; however, she also gave evidence that she had failed some units in her first and second semester and that she later determined that she was not progressing in the course because she was not interested in the course and her interest was in midwifery. I appreciate that it is disappointing for the applicant that she did not complete the course and that she does not wish to disappoint her mother.
It appears that, from the applicant’s evidence and the delegate’s decision, the University of Queensland granted her a deferment in 2022 from 31 March 2022 to 30 June 2022, and she did not study in the first semester of 2022. I acknowledge that the applicant was stressed because of her delayed course progression, however, she was aware of the requirement to remain enrolled in a course. While the applicant was not able to recall specific details about when she worked, she gave evidence that she worked part-time for around a year before returning to Singapore with her mother at the end of 2023. She was aware that she needed to improve her marks to progress with the course, but her progress in semester 2 of 2022 was unsatisfactory which led to the university cancelling her enrolment on 20 March 2023. I also acknowledge that her interest in the course had waned, which appears to have led to her poor course progression, and that she made some attempts to enrol in other courses. Based on the information before me, these attempts were made after her enrolment had been cancelled.
Her representative acknowledged that it was difficult for her to obtain an enrolment because of her past history and that is why they obtained the recent enrolment. Her current course enrolment is in a Diploma course which she described as similar to what she studied before in her Bachelor degree. She did not progress in her Bachelor course after her first two semesters and has stated she was not interested in her Bachelor degree course and her interest lies in midwifery. As noted above, these considerations and the timing of the enrolment call into question the purpose for which the recent enrolment was obtained.
I accept that the applicant’s purpose of travel and stay in Australia was to study, however, I have considered all the evidence before me and do not consider the applicant has a compelling need to remain in Australia. I place weight in favour of cancelling the applicant’s visa in this regard.
The extent of compliance with visa conditions
Based on the material before me, the applicant has complied with the conditions on her student visa, apart from condition 8202.
As noted above, the applicant’s breach of condition 8202(2)(a) of the visa is significant, being over eight months i.e., from 20 March 2023, when she was no longer enrolled in a full-time registered course, until 13 December 2023 when the delegate cancelled the visa. I consider the breach to be significant. I give this factor weight in favour of cancelling the applicant’s 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 became emotional at the hearing when describing her study history in Australia. The representative stated that the applicant had taken the situation very hard as she had not been able to prove herself in academics to her mother. I acknowledge that it may be deeply disappointing to the applicant to not have been able to complete her degree and that she may feel a sense of shame. I also acknowledge that she has sought assistance this year from a psychologist. The applicant has an older sister who resides in Australia as a permanent resident. I find that the applicant would face a degree of hardship if the visa is cancelled, and that she would be separated from her sister which may cause some hardship to her sister. I give this factor some weight against cancelling the visa.
The circumstances in which ground of cancellation arose
The ground of cancellation arose because the applicant was not able to progress academically in her course, and her course provider cancelled her enrolment.
The applicant was aware that she was not interested in the course. I acknowledge that, because she did not want to disappoint her mother, she may have felt that the situation (such as not progressing in her course) was out of her control to some extent. I also acknowledge that she experienced stress and anxiety arising from her difficulties progressing in her course. However, I consider the choices the applicant made in relation to her situation were within her control. She said that she did not seek help. 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. I have considered the applicant has stated she took some steps by appealing the course cancellation with the University and attempted to enrol in another course in October 2023. However, I do not consider that the ground of cancellation arose arising from circumstances which were beyond the applicant’s control. She was aware of the requirement to maintain her enrolment, which meant that she had to progress in her course or enrol in another course, and she did not do so. During the time she was struggling with her academic progress, she spent some time working part-time.

While I acknowledge the applicant took some limited steps to rectify her enrolment status (such as attempting to enrol in a course in October 2023), I have also had regard to the circumstances which led to the cancellation which show that the applicant was aware from the first semester of 2022 that she needed to take steps to improve her academic performance or find another course more suited to her. I place some weight on this factor in favour of cancelling the visa.
The past and present behaviour of the visa holder towards the Department
There is no material to indicate that the applicant has engaged in any adverse conduct towards the Department. Accordingly, 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 consequentially cancelled under s 140
This consideration is not relevant in this matter.
Whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal
If the applicant’s visa is cancelled, she will become an unlawful non-citizen and liable to detention under section 189 of the Act. She will also have limited options to apply for further visas in Australia as she will be subject to the bar in section 48 of the Act and therefore would be restricted to applying for visas outlined in regulation 2.12. She will also be subject to a potential three-year exclusion period from being granted particular visas, where Public Interest Criterion (PIC) 4013 (as specified in Schedule 4 to the Migration Regulations 1994) is a criterion. The time period for the operation of PIC 4013 commences from the date of the delegate’s decision (13 December 2023).[2]
[2] See Xiong v MICMSMA [2021] FCCA 1075.
The applicant said that if her visa is cancelled and she cannot remain in Australia, she would return to Singapore and live with her mother. Therefore, I do not consider that she would be liable for indefinite detention. She also holds a Bridging visa and would be eligible to apply for a Bridging visa while she makes arrangements to depart Australia.
There is no restriction on the applicant applying for a visa from offshore, once she has departed Australia.
While I acknowledge the potential impact the operation of these provisions may have on the applicant, I consider that the provisions referred to are the intended consequences when a visa is cancelled. I place neutral weight on this consideration.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. These include the best interests of any children whose interests could be affected by the cancellation; and whether cancellation would lead to removal in breach of Australia’s non-refoulement obligations
There is no information before the Tribunal that Australia’s international agreements or non-refoulement obligations may or would be breached if the applicant’s visa is cancelled. The applicant has not raised any fears about returning to Singapore.
There is also no information before the Tribunal that there are any children who could be affected by the cancellation of the applicant’s visa, or that the cancellation of the applicant’s visa would breach the Conventions on the Right of the Child.
Accordingly, I give this consideration neutral weight.
Any other relevant matters
The applicant has provided material in support of her review application, including two Tribunal decisions in respect of student visa refusals, a receipt for overseas health insurance, financial information and photographs of her attending the college last week. I acknowledge the Tribunal decisions provided; however, they do not relate to a student cancellation decision. In respect of the other information provided, I have had regard to this material and find that it reflects that the applicant intends to comply with the relevant conditions in respect of health insurance and financial requirements, if she were to hold a student visa. I also acknowledge that her mother has made a payment for her enrolment in her current course, which commenced last week, and the applicant has funds available to her. However, I do not find that it overcomes my concerns raised above, in particular about whether she has a compelling need to reside in Australia, the extent of the breach and the circumstances in which the ground of cancellation arose.
Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Date(s) of hearing:  4 August 2025
Representative for the Applicant:           Mr Rohit Sharma (MARN: 1797395)
ATTACHMENT – Extract from Schedule 8 to the Migration Regulations 1994 (Cth)
…
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 to the Migration Regulations 1994 (Cth)
2.43AMinister 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.