Gurram (Migration) - [2024] ARTA 575

Gurram (Migration) [2024] ARTA 575 (5 November 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Akhil Reddy Gurram
Respondent:  Minister for Home Affairs
Tribunal Number:  2315879
Tribunal:General Member C Kannis
Place:Perth
Date:5 November 2024
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 05 November 2024 at 7:35am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in full-time registered course – discretion to cancel visa – COVID pandemic and changes of subject area – disagreements with colleges about course delivery and fees – enrolments cancelled and no courses completed – physical health and surgery, and mental health – uncle’s death and parents’ financial position – continuing part-time employment – new enrolments made before department’s notice of intention received – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (1A), 359A
Migration Regulations 1994 (Cth), r 2.43A(2)(d), Schedule 2, cl 8202(2)(a)
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
Bandara (Migration) [2020] AATA 2889
Candra (Migration) [2022] AATA 2996
Maharjan (Migration) [2020] AATA 3879
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 28 September 2023 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 failed to comply 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.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 28 October 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Telugu and English languages.
The applicant was represented in relation to the review. The representative did not attend the hearing.
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
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled. 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?
On 5 January 2022, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
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).
The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 7 March 2023 until 14 July 2023. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 7 March 2023 until 14 July 2023 and the Tribunal finds that he breached condition8202(2)(a) of his visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
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 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 Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, his representative and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
Utilising the s 359A of the Act procedure, the Tribunal put the following information to the applicant for his comment:
On 12 July 2023, the Department of Home Affairs Character and Cancellation Branch sent the applicant an email regarding verification of his contact details and he responded on 13 July 2023.
In response the applicant said he agreed with information.
On 28 July 2023, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 7 March 2023 until 14 July 2023 and had therefore failed to comply with condition 8202(2)(a) of his visa.
Response to NOICC
On 3 August 2023, the applicant responded to the NOICC via his migration agent and provided the following information:
- During his stay in Australia he has made every effort to abide by his visa conditions. He attended all classes and maintained satisfactory academic results until the circumstances which led to the cancellation.
- He was granted a Student visa to study a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery at the National Training Centre of Australia (NTCA) and a Diploma of Business at Eagle Academy. The colleges are sister colleges and he encountered significant difficulties primarily related to the colleges’ inadequate maintenance of staff and failure to deliver the promised education despite charging substantial fees. These frustrations led him to seek a refund of his fees but NTCA claimed they could report him to Home Affairs and potentially cancel his visa.
- In April 2022, he decided to leave NTCA due to his dissatisfaction and decided to pursue a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery and a Diploma of Hospitality at Ashton College. He received CoEs for these courses on 19 April 2022. The agreement was for NTCA and Eagle Academy to transfer the fees he had paid to those providers to Ashton College but the transfer did not happen. Ashton College demanded he pay the full fee again resulting in attendance issues and further threats and on 15 July 2022 they cancelled his CoEs.
- Subsequently NTCA allowed him to continue his studies and recognise his previous studies. However, due to unforeseen issues “NTCA is asking the fee again from me and start giving hustle again”. On 3 August 2022, NTCA cancelled his CoE. Since then he has engaged in discussions with NTCA regarding fees and transcripts disputes. Feeling dissatisfied with the educational institutions he escalated his complaints to higher authorities.
- In March 2023, Eagle Academy closed and his Diploma of Business CoE was cancelled.
- In February 2022, he underwent surgery for testicular torsion. It was a distressing time for him and his family. Since August 2022 he has faced unexpected health issues related to his previous surgery. He has had online consultations and received prescriptions from doctors in India due to the cost of medical services in Australia.
- His health and enrolment issues with NTCA and Eagle Academy caused him anxiety and he became depressed. His parents advised him to return to India.
- His health has now improved and he is now in a stable condition.
- He approached a new agent for new enrolment however before taking the CoE from Newton College he received the NOICC. These events were coincidental and not intentionally orchestrated. He has enrolled in a Certificate III in Commercial Cookery, a Certificate IV in Kitchen Management and a Diploma of Hospitality Management at Newton College.
- Cancellation of his visa would have significant adverse effects on his life, emotionally, financially and academically. His studies would be terminated and hinder his personal and professional growth and would also waste the time, effort and financial resources invested in his education. Cancellation would cause his family emotional distress and he would lose valuable experience and skillset acquired through his course limiting his professional growth and future opportunities.
- His family have made financial sacrifices to ensure his education and cancellation would put a financial burden on them and their financial investment would be lost.
- He is committed to returning to his home country after he completes his studies. He has strong family ties at home and there is a wealth of career opportunities at home. After he completes his studies he aims to establish himself as an innovative chef.
At the time of responding to the NOICC the applicant provided the following documents:
- CoEs for Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and Diploma of Hospitality Management, all created on 14 July 2023; and
- Medical evidence related to the applicant’s testicular torsion surgery including a Discharge Summary dated in February 2022.
Pre-hearing submissions
Written submission from the applicant’s representative which included the following:
- The applicant completed his secondary education in India. From a young age he had an interest in machines and their working which lead him to enrol in a Bachelor of Mechanical Engineering at Osmania University in India.
- The applicant has studied courses from 2019 to 2024 including a Master of Maritime Design, Certificates III and IV in Commercial Cookery, Diploma of Business, Diploma of Hospitality Management and Certificate IV in Kitchen Management. He was unable to complete these courses due to exceptional circumstances.
- The applicant initially travelled to Australia in 2019 to pursue a Master of Maritime Design and was making steady progress however by April 2020 he faced the challenges brought by COVID-19 of the shift to virtual classes and he struggled with online study which caused a sense of isolation. He felt lost and overwhelmed. Adding to this burden his ability to work and support himself financially was impacted as he was unable to secure consistent work. It was a difficult emotional period and he was anxious and uncertain about his future.
- The emotional and mental toll became unbearable leading to his decision to downgrade his studies to Certificates III and IV in Commercial Cookery, Diploma of Business. He hoped this would ease some pressure but instead his health deteriorated. At the same time, in December 2020, his uncle passed away. He was close to his uncle and the loss occurred while he was already battling depression.
- The applicant’s physical and mental health worsened and he sought medical assistance by having check-ups. Despite his prescribed medication, his condition continued to decline and he was diagnosed with right testicular torsion requiring urgent surgery which he underwent on 11 February 2022 and he was discharged from hospital the following day.
- The stress of his studies, the isolation of the pandemic and his health left the applicant depressed and he was unable to concentrate on his studies or work. He discontinued the package of courses Certificates III and IV in Commercial Cookery, Diploma of Business and opted to enrol in similar ones with a different education provider and chose to pursue Certificates III and IV in Commercial Cookery and Diploma of Hospitality Management. However he faced challenges again and found it difficult to adapt to online learning. In addition he was struggling financial hardship due to the economic downturn in Australia because of COVID-19. The virtual learning challenges and financial strain became overwhelming and he was forced to discontinue his studies again.
- As COVID-19 restrictions lifted and in person classes resumed, the applicant enrolled in Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and Diploma of Hospitality Management. He made noticeable progress however just as he was gaining momentum he received the NOICC.
- A Certificate IV in Kitchen Management and Diploma of Hospitality Management offer benefits to a person wishing to have a career in hospitality and some compelling reasons include that the courses provide practical skills, management skills and customer service which will broaden the applicant’s career opportunities from managing hotels to running restaurants or catering businesses. The qualifications will prepare him for leadership positions. The hospitality industry is a global field and with these qualifications the applicant can explore career opportunities around the world. India has a booming hospitality sector that actively seeks qualified professionals. The applicant's goal is to become a chef and on completing his studies he intends to return to India to open a restaurant and settle down with his parents. His connection to India is strong as his family owns properties and assets and he maintains close ties to his culture and community. As such, he prefers to reside in India.
- The applicant's ties to Australia are minimal. He does not own property or other assets nor does he participate in any local activities or communities. He does not have significant social connections or friendships in Australia. His focus remains on returning to India, where his roots, family, and future plans lie.
- Case references provided:
Evidence provided at hearing
The Tribunal adopted the procedure in s 359A of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from PRISMS he has not finished any of the 11 courses in which he was enrolled in Australia and his enrolments in all the courses were cancelled. Relevant to the decision under review, the applicant’s enrolment in a registered course was cancelled on 3 March 2023 and he did not enrol in another course until 14 July 2023. After the Department contacted the applicant on 12 July 2023, he enrolled in 3 courses, all of which were cancelled when his visa was cancelled.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 7 March 2023 until 14 July 2023 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering his purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comment in relation to his PRISMS enrolment record. The applicant told the Tribunal he agreed with the information in his PRISMS enrolment record.
The Tribunal asked the applicant about the statement in the NOICC response that he encountered significant issues, primarily related to the colleges’ (NTCA and Eagle Academy) inadequate maintenance of staff and failure to deliver the promised education and that these frustrations led him to seek a refund of fees however NTCA management claimed they could report him to Home Affairs and potentially cancel his visa. In response the applicant said at that time the colleges were pressuring him to pay his tuition fees however because of the financial impact of COVID-19 on his parents and his uncle’s passing in 2021, he was not able to pay his tuition fees. He said his uncle had been a financial supporter of his studies in Australia. In response to the Tribunal asking when the colleges pressured him to pay his tuition fees, the applicant said it was in February 2022, around the time he underwent surgery. The Tribunal pointed out that it is reasonable to expect a visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.

The Tribunal asked the applicant about the statement in the NOICC response that there was an agreement that NTCA and Eagle Academy would transfer the fees he had paid to Ashton College but the transfer did not happen and Ashton College demanded he pay the full fee again, resulting in attendance issues and further threats and cancelling his CoEs on 15 July 2022. In response, the applicant said that when he first spoke to NTCA about transferring his fees to Ashton College they agreed to do so however he subsequently spoke to another person at NTCA who told him it was too late to transfer his fees.
The Tribunal asked the applicant about the statements in the NOICC response that NTCA agreed to allow him to continue his previous studies with them however due to unforeseen issues NTCA asked the fee again and gave him ‘hustle’ again and since then he has engaged in discussions with NTCA regarding fees and transcripts disputes. On 3 August 2022, NTCA cancelled his CoE in a Certificate IV in Commercial Cookery. The applicant told the Tribunal that NTCA requested payment of tuition fees however he was not able to pay because of the financial impact of COVID-19 on his parents and his uncle’s passing in 2021. He said he thought NTCA would give him time to pay however they requested immediate payment of the full amount of tuition fees.
The Tribunal asked the applicant about the statement in the NOICC response that he escalated his complaints to higher authorities. In response the applicant told the Tribunal that he complained to higher departments of NTCA however the outcome was that he was required to pay the full amount of tuition fees.
The Tribunal asked the applicant about the information in the NOICC response in relation to his surgery for testicular torsion and that since August 2022 he has been facing unexpected health issues related to the surgery. The NOICC response stated he has been visiting doctors for treatment and having online consultations and receiving prescriptions from doctors in India. The applicant told the Tribunal that after his surgery in February 2022 he was on ‘bed rest’ for 2 months, until mid-April 2022. He said in August 2022 he was experiencing pain related to the surgery and he participated in four video conferences with doctors in India during August and September 2022.
The Tribunal asked the applicant about the information in the NOICC response that his health and enrolment issues with NTCA and Eagle Academy caused him anxiety and he became depressed. In response the applicant said his medical issues and financial issues caused him to feel depressed. When asked about whether he sought medical treatment for his mental health the applicant said he participated in teleconferences with doctors in India. He said he was not prescribed medication for his anxiety and depression and the recommended treatment was yoga. The applicant told the Tribunal that he was depressed for 5 to 6 months from February 2022.
The Tribunal asked the applicant about the information in the NOICC response regarding his enrolment in a new course on 14 July 2023, 2 days after he was contacted by the Department. In response the applicant said he had been thinking about enrolling in courses and when he was contacted by the Department he acted immediately and enrolled.
The Tribunal asked the applicant about his study in Australia noting PRISMS shows all his courses were cancelled. In response the applicant said that the financial impact of COVID-19 and his medical issues were the reasons he had not finished any course.
The Tribunal asked the applicant how he financially supported himself during the period from 7 March 2023 until 14 July 2023. He said he was financially supported by his parents and also worked part-time in Coles for 10 to 15 hours per week. The applicant told the Tribunal that he commenced this employment with Coles in February 2020 and worked there until he applied for leave in February 2022 because of his medical issues. He told the Tribunal he commenced this employment again in February/March 2023 and remains in that job today.
The Tribunal put to the applicant that he would have known during the period from 7 March 2023 until 14 July 2023 that he was no longer enrolled in a course and was not abiding by the conditions of his visa. In response the applicant conceded that he was aware he was not complying with the conditions of his visa and said his medical and financial issues caused him to not concentrate on his studies. He said he always intended to re-enrol when his parents’ financial position improved.
The Tribunal asked the applicant about the statement in the representative’s written submission that his ties to Australia are minimal. The applicant agreed with this statement.
The Tribunal asked the applicant about the cases referred to in the representative’s written submission. The applicant told the Tribunal he was aware of the cases and agreed with the submissions. He said he will be able to improve his knowledge if he completes his study in Australia.
When asked about the purpose of his travel to Australia, the applicant told the Tribunal that he travelled to Australia to buy a Masters qualification. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he needs to complete his study because it will enable him to settle his future in India. He said cookery courses in India are not the same as those in Australia.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said if he returns to India without completing cookery studies in Australia he will not be able to buy a food business such as a restaurant in India.
The Tribunal has considered to prescribed matters in reg 2.43A. In the present case there are no claims or evidence in relation to workplace exploitation and therefore the only relevant consideration for the Tribunal under reg 2.43A is reg 2.43A(2)(d) which provides that the Minister must have regard to whether there is any evidence before the Minister that the visa holder either was not complying with the purpose of the visa, or is no longer seeking to comply with the purpose of the visa. Unlike the other paragraphs under reg 2.43A(2), this matter does not appear to be directly linked to a workplace exploitation matter. The Tribunal has had regard to whether the applicant was not complying with the purpose of his Student visa (see paragraph 42 below) and finds he was not complying with the purpose of his Student visa and this weighs in favour of visa cancellation. The Tribunal accepts the applicant’s evidence at the hearing that he wishes to complete his study in Australia and would comply with any visa conditions imposed and gives this some weight against cancellation.
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 the matters in PAM3 as referred to above.
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 purpose of the applicant’s visa was to enable him to study. The applicant was not enrolled in a course of study for a period of 3 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. The Tribunal accepts that the applicant obtained CoEs created on 14 July 2023 however these were obtained after being contacted by the Department on 12 July 2023.
As noted, the applicant has not completed any course of study since he arrived in Australia in 2019
There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[3] The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response the applicant said he needs to complete his study because it will enable him to settle his future in India and the cookery courses in India are not the same as those in Australia. The Tribunal does not consider this constitutes a compelling need.
[3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
The applicant’s non-engagement in the study for which his visa was granted and the absence of a compelling need for him to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of his student visa because he has failed to maintain enrolment in a full-time registered course of study for a period of 3 months. There is no evidence before the Tribunal that he has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for a period of 3 months weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that cancellation of the applicant’s visa will likely cause him hardship because he may not be able to buy a food business in India. The Tribunal accepts that cancellation would cause the applicant and his family emotional distress as set out in his response to the NOICC. The Tribunal accepts that the applicant’s family would have to bear the costs of his return to India as set out in his response to the NOICC.
The Tribunal gives the emotional and financial hardship that may be caused to the applicant and his family some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of his failure to maintain enrolment. The applicant was not enrolled in a course for 3 months. He told the Tribunal the reasons for the period of non-enrolment were because of his medical issues and the financial impact of COVID-19 on his parents’ ability to support his study in Australia. He also said his uncle’s passing in 2021 affected his ability to pay his tuition fees because his uncle had provided him with financial support.
In relation to the applicant’s medical issues, the Tribunal accepts that he underwent surgery in February 2022 and sought medical assistance in August and September 2022 for pain in relation to the surgery. The applicant told the Tribunal he suffered anxiety and depression for 5 to 6 months from February 2022 because of the personal nature of his surgery and because of financial issues. There was no evidence of diagnosis or treatment of depression and anxiety before the Tribunal however the Tribunal accepts the applicant’s evidence that the nature of his surgery caused him to experience a low mood for several months. The period of non-enrolment was from 7 March 2023 until 14 July 2023 which was more than a year after the applicant’s surgery and several months after the claimed subsequent surgery related pain and period of depression and anxiety. Further, the applicant’s evidence was that during the period of non-enrolment he continued his part-time employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder.
In relation to the financial issues referred to by the applicant, the Tribunal accepts that the applicant experienced a degree of financial hardship in 2022 due to the financial impact of COVID-19 on his parents’ ability to support his study and his uncle’s passing in 2021. The period of non-enrolment was from 7 March 2023 until 14 July 2023 and the Tribunal places weight on the applicant’s ability to enroll in a course 2 days after being contacted by the Department which suggests that financial hardship was not the reason for the period of non-enrolment from 7 March 2023 until 14 July 2023.
The Tribunal accepts the applicant’s evidence that he encountered difficulties with education providers in 2022 however these difficulties were prior to the period of non-enrolment.
The applicant told the Tribunal that from 7 March 2023 until 14 July 2023 he was aware he did not have a current CoE. He said he did not contact the Department because he intended enrolling in a course once his parents were able to provide financial support. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.
The representative’s written submission referred to COVID-19 contributing to the applicant feeling isolated and his difficulty with online classes. These were not raised by the applicant at the hearing however the Tribunal accepts that the applicant may have experienced these difficulties however the period of non-enrolment occurred after in person classes resumed.
In relation to the representative’s written submission that the applicant received the NOICC when he had made noticeable progress and was gaining momentum, the Tribunal does not accept this contention. The NOICC was dated 28 July 2023 and the applicant enrolled in the Certificate III in Commercial Cookery, Certificate IV in Kitchen Management and Diploma of Hospitality Management on 14 July 2023. The Certificate III in Commercial Cookery commenced on 17 July 2023 and therefore the course had only begun 11 days prior to the NOICC.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because he ceased to be enrolled in a registered course from 7 March 2023 until 14 July 2023. The Tribunal finds that the applicant knowingly remained in breach of his visa conditions and only enrolled again when he was contacted by the Department on 12 July 2023. The Tribunal finds that the applicant’s medical issues in 2022 affected his physical and mental health however during the period of non-enrolment they did not prevent him from being enrolled in a registered course. The Tribunal accepts that the applicant’s financial circumstances may have been adversely affected in 2022 however does not accept that this was a reason for non-enrolment during the period from 7 March 2023 until 14 July 2023. As noted, the applicant enrolled again when he was contacted by the Department on 12 July 2023. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that 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 the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The Tribunal considered the case references provided in the representative’s written submission. The representative did not attend the hearing and the applicant was able to provide minimal information in relation to his reliance on the cases. Accordingly the Tribunal has considered each case based on the representative’s written submission.
The decision in Candra was about a refusal to grant a Student visa and the issue was whether the applicant met the primary criteria for the visa including that an applicant is a genuine student, that he or she must intend genuinely to stay in Australia temporarily and comply with any conditions. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements because he did not intend genuinely to stay temporarily in Australia. In that decision the Tribunal (differently constituted) was satisfied that the applicant was a genuine temporary entrant to Australia. In making its decision the Tribunal took into account the applicant’s evidence that he intended to return to Indonesia to open his own business. The present decision under review is a decision to cancel the applicant’s visa and not a refusal decision and the applicant’s intention to stay temporarily in Australia may be relevant to the exercise of the discretion to cancel the visa however it is not a requirement for the grant of the visa. The Tribunal accepts in the present case that the applicant’s intention is to return to India however gives this limited weight against cancellation.
The decision in Bandara was about a refusal to grant a Student visa and whether the applicant met the primary criteria including that an applicant is a genuine student, that he or she must intend genuinely to stay in Australia temporarily and comply with any conditions. In that decision the Tribunal (differently constituted) was satisfied that the applicant was a genuine temporary entrant to Australia and took into account the applicant’s evidence that he researched studying in Australia while he was living in Australia and that his research involved online research aimed at comparing course offerings and visiting TAFEs. The Tribunal accepted that the applicant had a realistic knowledge of life in Australia and the courses of study he wished to pursue before he applied for his visa. The present decision under review is a decision to cancel the applicant’s visa and not a refusal decision and Tribunal accepts that the applicant had knowledge about life in Australia and courses in which he enrolled however gives this minimal weight against cancellation.
The decision in Maharjan was about a refusal to grant a Student visa and whether the applicant met the primary criteria for the visa including that an applicant is a genuine student, that he or she must intend genuinely to stay in Australia temporarily and comply with any conditions. In that decision the Tribunal (differently constituted) was satisfied that the applicant was a genuine temporary entrant to Australia and took into account the applicant’s evidence in relation to her personal ties to Australia and to her home country of Nepal. The present decision under review is a decision to cancel the applicant’s visa and not a refusal decision and Tribunal accepts that the applicant does not have any Australian ties and does not have strong incentive to remain in Australia however gives this limited weight against cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and 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 of hearing:  28 October 2024
Representative for the Applicant:       Mr Jayapal Reddy Vadlakonda (MARN: 0957482)
ATTACHMENT
Migration Regulations 1994
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2) A holder not covered by subclause (1):
(a)      must be enrolled in a full time registered course; and
(b)      subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i) the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.