Gurung (Migration) - [2025] ARTA 1472

Gurung (Migration) [2025] ARTA 1472 (16 July 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Tulshi Gurung
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2318775
Tribunal:Senior Member G Cullen
Place:Sydney
Date:16 July 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 July 2025 at 12:51pm
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 – discretion to cancel visa – study history – arrived on visitor visa before deciding to study – young age, limited facilities, poor teaching, bullying by classmates, COVID restrictions and online study – no approach to provider – new enrolment in different subject area after receiving department’s notice of intention – requirement is not enrolment at time of decision but maintaining enrolment – new relationship, employment and intention for further study – not eligible to apply as dependant on partner’s visa – mandatory legal consequences and hardship if visa cancelled – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b), (1A), 359A
Migration Regulations 1994 (Cth), r 2.43A, Schedule 8, condition 8202(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 of the Migration Act 1958 (Cth) (the Act)
The delegate cancelled the visa under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 19 November 2023.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal via video on 18 June 2025 to give evidence and present arguments. Her de facto partner, Mr Unique Shrestha also gave evidence via telephone when called by the Tribunal. Her representative attended the hearing.
The applicant was given until 2 July 2025 to provide further evidence, which she did.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant was granted a Subclass 500 Student visa onshore on 13 August 2019 valid to 29 December 2023. That visa was subject to condition 8202.
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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
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 registered course, or in limited cases, a full time course of study or training: 8202(2);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis she was not enrolled in a registered course: condition 8202(2).
The applicant was notified of the intention to consider cancellation (NOICC) of her visa on 23 October 2023. The Tribunal is satisfied that the NOICC was validly issued.
The NOICC raised with the applicant that she had not been enrolled in a registered course of study since 4 August 2022. The applicant responded to the NOICC and did not dispute that she had not been enrolled in a course of study from 4 August 2022. She provided a new Confirmation of Enrolment (COE) dated 26 October 2023 to study a Graduate Diploma of Management (Learning) from 13 November 2023 to 9 November 2025.
She provided reasons as to why she had not been enrolled in the response to the NOICC which are considered below.
The delegate found the applicant had not been enrolled in a registered course of study from 4 August 2022 to 25 October 2023. Her visa was cancelled following an assessment of the discretionary criteria.
The applicant confirmed in oral evidence to the Tribunal that she was not enrolled in a course of study from 4 August 2022 to 25 October 2023. The Tribunal notes while the Graduate Diploma of Management (Learning) commenced on 13 November 2023; the Confirmation of Enrolment submitted is dated 26 October 2023, being the day her enrolment was approved by the education provider.
The applicant’s representative argued that as she was enrolled at the time of the delegate’s decision, she complied with the visa condition. In the pre-hearing submission and at hearing he argued that the wording of 8202(2)(a) indicates that the applicant must be enrolled in a full-time registered course at the time of decision. He argued that it does not require the applicant to maintain enrolment. He submitted the applicant has therefore met condition 8202 as she was enrolled at the time of the Department decision to cancel the visa. The Tribunal does not accept this argument and is of the view condition 8202 explicitly requires primary student visa holders to maintain enrolment in a registered course and that this is a continuing requirement.
Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 4 August 2022 to 25 October 2023 while the holder of a subclass 500 Student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).
Accordingly, the Tribunal finds applicant has not complied with condition 8202(2). The Tribunal is therefore satisfied that the grounds for cancellation in s.116(1)(b) exist.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the power to cancel the visa should be exercised.
Background
The applicant is a 25-year-old female citizen of Nepal. She has no children. At hearing she gave evidence that she is in a de facto relationship with Mr Unique Shrestha, who she met about 2 years ago. They have provided evidence of living together for more than a year. They plan to marry. He is studying a Bachelor of Information Technology and has one semester to complete the course. He will then apply for a further Student visa to study a Master of Information Technology and obtain work in the area. The applicant is not a dependent on his visa and as her visa was cancelled, she could not apply to be a dependent on his visa. Both the applicant and her partner spoke of the hardship on them both if her visa is cancelled. The representative referred to PIC 4013 and PIC 4014 and that she would be unable to travel to Australia and/or be a dependent on his Student visa.
Her study history from her evidence and the PRISMS[1] record, while holding the Student visa, as raised with her via s 359A is as follows.
·She initially studied a Diploma of Business from 24 June 2019 to 21 June 2020. At hearing she said she successfully completed this course
·She enrolled in an Advanced Diploma of Business from 31 August 2022 but enrolment was cancelled when she ceased studying the course on 18 February 2022. At hearing she said she completed two units towards this course.
·Enrolment in the Bachelor of Business (Accounting), which she was to study from 21 March 2022 to 29 October 2023, was cancelled when the applicant notified cessation of studies on 4 August 2022. At hearing she said she never commenced studying this course.
·She was not enrolled in any course of study until she enrolled in the Graduate Diploma of Management (Learning) on 26 October 2023 to commence on 13 November 2023. As condition 8207, the no-study condition, was placed on her visa when the Department cancelled her visa, she was unable to study this course.
·She submitted a new COE to study the Graduate Diploma of Management (Learning) from 23 June 2025 to 20 June 2027.
[1] According to the PRISMS website, the Department of Education, Skills and Employment is responsible for the Commonwealth Register of Institutions and Courses for Overseas Students. It is recorded that PRISMS is a computer system developed by the Department in association with the Department of Home Affairs for the purpose of receiving and storing information about accepted overseas students that is given to the Secretary under the ESOS Act. It is further noted that PRISMS provides a secure system for providers of registered educational institutions to comply with legislative requirements by issuing confirmations of enrolments as ‘evidence of enrolment’ in a registered full-time course as required by the Department of Home Affairs and reporting changes in course enrolment, particularly where study ceases, or the duration of the study changes.
While it is possible providers may not update PRISMS as required, the Tribunal accepts that PRISMS is a reliable record of enrolments unless there is specific evidence to the contrary in relation to a particular case.
The following is a summary of her representative’s submission provided in his response to the NOICC outlining the compassionate and compelling circumstances as to why the visa should not be cancelled.
·She travelled to Australia in May 2019 to visit her relatives for a short period of time and became impressed by Australia’s world-class education system, so she decided to take advantage of the opportunity to obtain Australian qualifications. She enrolled in the courses and exhibited a genuine intention to study. She was young.
·She fully complied with all conditions of the visa until August 2022.
·When granted the Student visa the applicant was elated and she pursued her course with great passion. She tried her best to acclimatise despite the gap between the expected quality and the vastly different educational systems.
·She was settling down when the world was brought to a standstill by the Covid pandemic and the lockdown disrupted her life and study.
·She switched to an online mode of study. This adversely affected her studies. She struggled and worked hard to adjust. Meanwhile the applicant’s mother faced health issues and coupled with the terror of the pandemic, the applicant’s mental health suffered. She could not focus on her studies and while she would continue to be enrolled there was no progress. She became frustrated and worried about her mother’s health, her own well-being and the economic and emotional challenges posed by the pandemic. She eventually wore out. She was deeply demotivated by lack of friends in her class and a lack of quality teaching from the provider. This created an immense burden on her and her young mind could not bear it anymore. She broke down and her passion for studies deserted her. She did not act rationally and she did not maintain full-time enrolment.
·She should be given another chance in her life to make amends.
·In his conversations with her he has found her to have recovered well and to be full of vigour and energy to achieve her academic and personal goals.
·Having enrolled in a suitable course she will complete it.
·The applicant’s parents harboured great hopes with her academic journey in Australia and they have spent a lot of time and money. If the visa is cancelled, it will have a deep impact on her future being a young woman carrying much burden and facing many struggles.
·If her visa is cancelled, she would have no legal status in Australia and will have to make arrangements to leave the country or go through extensive appeals. Either way it will be huge setback for her and she will be left empty-handed. Her parents’ money and her time will be for nothing. This has the potential for lifelong mental scars.
·Even if she returns to Nepal the applicant may not be able to study or make career progress and potentially will have to live with the guilt that she wasted such a huge investment by her family and that she wasted years of her life.
·She will study to obtain qualifications for the future. She wants to make her parents proud.
She also provided a PTE English test score of 68.
In a pre-hearing statement, the applicant made the following submissions.
·She arrived in Australia on 22 May 2019 to join her family during a cultural celebration and she explored Australia. After hearing the positive feedback from Australian graduates, she decided to pursue an Australian education.
·She consulted an education agent and as her major back home was accounting, she decided to study a package of courses leading to a Bachelor of Professional Accounting.
·She went from being completely dependent on her family to suddenly managing life in a new country.
·Her study at Lenox College was disappointing. The college was extremely small with limited classrooms. It did not feel like an educational institution. The classrooms were congested. The worst was that she was the only female student in a classroom full of Indian male students. The imbalance made her feel extremely uncomfortable.
·She had trouble focusing in the class especially when the fellow students were chaotic and communicated in their own language. The teacher also communicated in their language. She felt bullied and taken for granted as her classmates hid her belongings. When she returned from the break, her desk was moved. She felt extremely disgusted and unsafe when someone placed a paper with disturbing drawings on her bag.
·Since the teacher and other students would communicate in their native language, the teacher had to rephrase it to her in English. She noticed that the teacher would become annoyed when she asked questions.
·Due to the uncomfortable environment, bullying and shaming she was discouraged to continue studying at this college.
·She realises now that could have made a complaint to the authorities but due to her lack of knowledge of her own rights, she did not take any measures except for talking to another male Indian person. She tried to dismiss the whole situation assuming it was a result of a cultural difference and her own lack of adjustment, so she continued.
·Her studies were disrupted during the period of the Covid pandemic.
·She worked as a cleaner sanitising the trains.
·Australia managed the pandemic better than her home country. Her mother contracted Covid and was alone at home with no one to take care of her.
·She also lost a close family member in the pandemic. She was emotionally shattered knowing they were suffering and she could not be there. The financial pressure on her family increased and mentally she was stretched beyond capacity.
·When the lockdown restrictions finished face-to-face teaching started and she was back in the same toxic, suffocating college environment. She was deeply depressed and anxious regarding her mother’s health as well as having pandemic induced anxiety. This was made worse by returning to an unsafe environment at the college.
·She went to a different consultant and explained what had occurred but was told she was unable to transfer to a different college. She was told she had to complete six months of her primary course, being the Bachelor of Accounting. She began skipping classes not because she was careless but because she was terrified and traumatised. She would wake up every night terrified to go in the classroom and she was not learning anything. She had lost confidence and slowly lost her academic standard.
·At this point she felt like the whole situation was out of control and she was lost. She was alone.
·She eventually found the courage to start again.
·As she was already working in aged care as a personal care assistant, she researched studying in the field as her sister is a nurse. She wants to pursue nursing. For that she prepared and sat her PTE. She could not obtain a COE for nursing as her background was finance.
·Unfortunately, just as she was about to engage with her life, she received the NOICC and her visa was cancelled.
·She sat the PTE before her cancellation notice which indicates she was serious and had planned to study. She was granted a Bridging visa but with no study rights. She had a phone interview requesting to study again but that was denied.
·The journey has changed her. She has made mistakes but she has tried repeatedly to do the right thing. She never came to Australia to misuse the system. Her only goal was to become an educated and independent woman.
·She accepts she was not enrolled for some time. She wants the education provider to share equal responsibility.
The applicant’s representative made submission as to the discretionary circumstances regarding whether the education provider had met the requirements under the ESOS Act, whether the provider monitored attendance and performance and whether there existed a complaint handling procedure.
At hearing the Tribunal discussed with the applicant her study history, reasons that led to her non-enrolment, why she was not enrolled in the relevant period and the discretionary criteria. She outlined consistent with the above submission why she did not achieve course progress. She said she did not commence the Bachelor course and became disillusioned with the bullying. She said she spoke to one teacher about her issues but took no other action. The Tribunal referred to the complaints procedure at Lennox College as outlined online and she said she did not know this existed. It questioned why in three years of study from the end of the Diploma she only talked to one teacher about the issues she was facing. It also questioned why she did not mention this in her response to the NOICC. She said it was very stressful . She went to an agent to change providers, but the rules require her to study for six months her primary course.
She also referred to the mental health problems she faced, her lack of support and that her mother had Covid. Her father was working as a security guard in Afghanistan and her sister was in Australia. She said one brother was living in another province far away. She confirmed she sought no medical help for her mental health and worked throughout the relevant period. The Tribunal questioned if she was able to work, why she could not study. It questioned if she was so mentally affected that she could not study, why she would not seek medical help. She said working is physical and she was being bullied and it was too hard to attend College.

For the last two years she has been working in aged care. She spoke of her passion and commitment to the area and that she wants to now study a Diploma and Bachelor of Nursing. Her partner, Mr Unique Shrestha, spoke of going with her to education consultants to enol in nursing courses but she could not as it is difficult to enrol in this area, especially as she does not have a background and as her visa was cancelled.
The Tribunal asked why she could not study a Bachelor of Nursing in Nepal. She said that it would be difficult as there has been too large a gap since she finished high school. Her partner gave the same evidence. She referred to the compelling need for her to study the Bachelor of Nursing in Australia.
She referred to the hardship of having to return home with no career, how disappointed her family would be, their shame and leaving her partner. She referred to being in a very committed relationship, how she would be shattered emotionally with no prospect of studying in Nepal and her life would be ruined. She said her traditional parents would marry her to someone else. She said she would have no career.
The applicant’s representative noted that if the applicant returns to Nepal, she will have nothing and no career prospects and that she will be forced to marry and have children as her family have spent money on her and will not want to spend anymore. He referred to her partner’s consistent evidence that she would be unable to study a bachelor’s degree in Nepal due to her age. She has made errors but now has support from her partner, a career aim and passion.
He noted Lennox College is 54m2 and this is not a great space for a college and with such a small space it is difficult to see how they can provide the facilities they claim, especially with regard to making a complaint. He said the applicant did not know the complaint handling system existed. In any event, she could not be released as a student has to complete six months of the primary course before being released.
After the hearing the applicant provided a letter of support from Mr Unique Shrestha. He expressed how much she means to him; how important her presence is in his life and how this decision impacts not only her future but his. They met in July 2023 and when he first met her, she was going through a difficult phase, emotionally drained, mentally exhausted and carrying sadness in her eyes. As they started talking, she slowly opened up to him and they realised they had much in common, not just in goals and dreams but in pain and hardships. They are both international students in Australia and trying to create a future for themselves away from the comfort of home and away from family and friends. In August 2023 they moved in together and this decision bought them very close. They share their rent, bills, food and transport costs. By living together, they share all their costs and plan their budget carefully. They cook at home and help each other with daily chores and look after each other’s health. Without the applicant it would be very hard for him to pay his rent and living costs. They truly depend on each other not only for love and care in Sydney. The applicant has changed in his life in many ways. She supports him with his university work and when he is homesick. He feels safe and loved and they help each other to heal and grow. When she told him about what happened at her old college, he was shocked. She was bullied and felt unsafe and left out and had no one to turn to obtain help. He heard how she was made to feel ashamed in class, how people messed with her things and how she was talked down to just for being curious and wanting to learn. He supported and has guided her to meet several education consultants but because her previous studies were in finance and due to the cancellation of her visa this has created challenges for her to enrol. It has been devastating and heartbreaking to see her spirits break while she has been stuck on a bridging visa which does not allow her to study. It has left her in a state of uncertainty, unable to move forward with her goals. They have a small puppy and she is like their child. The three of them have built a little family together and the thought of losing that is incredibly painful. Without her he would feel physically alone, emotionally lost and mentally unsettled. Her presence gives him strength and keeps him grounded. They come from different castes and cultural backgrounds. This makes their relationship extremely sensitive, especially in the eyes of her family. If she is forced to return to Nepal without her education completed, as her parents already struggle to accept them being together, they will most likely arrange her marriage to someone else and he will lose her forever. He is worried about losing the only emotional support he has in Australia.
The following were also provided.
·A letter from a personal care assistant from the applicant’s current workplace noting that the applicant is an exceptional care worker. Her performance is consistently outstanding as she approaches her work with dedication and compassion.
·Email from a registered nurse from her current workplace noting that the applicant has been employed as a personal care assistant for over two years. She notes that during the applicant’s time with them she has demonstrated a high level of professionalism, compassion and dedication to her role. She provides quality care to the residents, ensuring their physical, emotional and social needs are met with respect and dignity. She works effectively as part of their multidisciplinary care team. She is reliable, punctual and maintains excellent communication with nursing staff and colleagues. She is a very dedicated team member and has been a pleasure to work with.
·One-year rental agreement for the applicant and Mr Unique Shrestha from 18 May 2025 for a unit in Merrylands.
·Letters of support from the residents of the aged care centre where she is employed referring to her dedication, positive behaviour and supporting her application.
·Letter from the applicant noting that she had spoken to the education agent and that she is unbale to obtain a nursing COE as the universities offering the program would not accept her due to the no-study condition on her visa. She said once she obtains a Student visa with study rights she can obtain a COE. She requested the approval of a Student visa so she can pursue a nursing education, a field that aligns with her life’s purpose of serving the elderly who need compassionate care.
Consideration of 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.
Any written certificate issued by a certifying government entity in relation to the visa holder in respect of a workplace exploitation matter which sets out the matters agreed to by Immigration and the entity
There is no evidence of a written certificate issued by a certifying government entity in relation to the applicant in respect of a workplace exploitation matter.
Any written certificate issued by a certifying non-government entity that states there is prima facie evidence the visa holder has been affected by a workplace exploitation matter, time has not expired for a proceeding to be instituted or a complaint made, and there is a connection between the breach and the workplace exploitation matter
There is no evidence of a written certificate issued by a certifying non-government entity that states there is prima facie evidence the applicant has been affected by a workplace exploitation matter.
Whether there is a connection between the circumstances relating to the breach and the workplace exploitation matter to which a certificate relates
There is no evidence of a certificate relating to a workplace exploitation matter or other evidence of any workplace exploitation matter relating to the applicant.
Whether the visa holder has committed, in writing, to take timely action to resolve the workplace exploitation matter to which a certificate relates and to comply with visa conditions in the future or has failed to comply with a similar previous commitment.
There is no evidence of a certificate relating to a workplace exploitation matter or other evidence of any workplace exploitation matter relating to the applicant.
Whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa.
The evidence indicates that the applicant was not complying with the purpose of the visa when she was not enrolled and studying from 4 August 2022 to 25 October 2023, a period of over fourteen months, while the holder of a Student visa. She has given reasons as to why she did not comply with the purpose of the visa. It has considered the reasons for her lack of study below. While it accepts she was young and made mistakes and was having difficulty studying at Lennox College prior to her ceasing to be enrolled, it does not accept she was in Australia for the purpose of the visa in this period of non-study while the holder of a Student visa. The requirement to be enrolled in a course of study in condition 8202(2) goes to this core purpose of the visa. The Tribunal places weight on evidence of the duration of the applicant’s non-compliance with this condition. The Tribunal gives this factor considerable weight in favour of exercising its discretion to cancel the visa.
At hearing the applicant referred to wanting to study a packaged course leading to a Bachelor of Nursing. It accepts from her credible and convincing evidence, as well as that of her de facto partner, that she is genuine in her claim that she wishes to now study these courses. It accepts she cannot enrol in these courses as there is a no-study condition on her visa. It places weight on the supporting and consistent evidence of her partner as to her future career aim. She referred to working in an aged care home and wanting to study to pursue a career in the area as a nurse. The Tribunal views her current employment as consistent with wanting to complete the nursing courses. The Tribunal found her evidence, as well as the of oral and written evidence of her partner to be credible and convincing that she is seeking to comply with the purpose of the visa. The Tribunal gives this weight against cancelling the visa.
Other matters
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 applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia
The applicant first arrived in Australia on 23 May 2019 on a subclass 600 Visitor visa valid to 23 August 2019. She was then granted a Subclass 500 Student visa onshore on 13 August 2019 valid to 29 December 2023. This visa was cancelled on 14 November 2023 and a no study condition was placed on her Bridging visa.
The purpose of the Student visa granted was for the applicant to travel to and/or stay in Australia; enrol and study, achieving course progression. As she successfully completed the Diploma of Business studied from 24 June 2019 to 21 June 2020, the Tribunal accepts that her purpose of being in Australia in this period was to study and achieve course progression. She then enrolled in the Advanced Diploma of Business from 31 August 2020, but enrolment was cancelled when she ceased studying the course on 18 February 2022. While she only completed two units it accepts her purpose of being in Australia was to study.
Of concern is her study and enrolment record from March 2022 until her enrolment in a course in October 2023. The evidence indicates she was enrolled in the Bachelor of Business (Accounting), from 21 March 2022 until enrolment was cancelled when she notified cessation of studies on 4 August 2022. At hearing she said she never commenced studying this course. As she did not study from March 2022 and was not enrolled from 4 August 2022 to October 2023 the Tribunal is of the view this is a string indication that her purpose of being in Australia was not to study and achieve course progression.
She has provided a number of reasons as to why she was not enrolled. She referred to the poor teaching environment and bullying she encountered at Lennox College which mentally affected her as well as the difficulties she and her family faced because of Covid. She also referred to being young and making bad choices. She referred to being mentally low and being unable to study. While the Tribunal accepts that these difficulties existed as she claimed, and would have been difficult for her, the Tribunal is of the view that if her purpose of being in Australia was to study, she would have made a complaint to the provider, particularly as I could be done online, or about the provider. It is also of the view if she was so mentally affected that she could not study for the reasons she claimed, if her purpose of being in Australia was to study, she would have sought medical help. The evidence is that she did not. It accepts she was young and made bad choices.
The Tribunal therefore does not accept her claimed reasons explain her complete lack of enrolment and study from March 2022 to 25 October 2023 . It is of the view her purpose of being in Australia was not to study from March 2022 until 25 October 2023. The Tribunal gives this weight in favour of exercising its discretion to cancel the visa.
As to whether there is a compelling need for her to stay in Australia, she referred to wishing to enrol in a package of courses leading to a Bachelor of Nursing. The Tribunal as noted above accepts she is genuine and credible in her claim that she now wishes to remain in Australia to study. It accepts she was young when she arrived and made mistakes, has now been working in aged care for two years and wishes to study in this area which she is passionate about. When asked why she could not return to Nepal and study a similar course there she said that this would be difficult as it has been a long time since she finished high school. Her partner also gave evidence that it is difficult to enrol and study as a mature age student. She also referred to her parents not supporting her and their shame. While the Tribunal accepts it may be difficult to enrol, it is of the view she could work in the area and it is still possible to study nursing courses as a mature age student in Nepal. While the courses would not be as good, in terms of quality and opportunities, it does not view this as representing a compelling need to remain in Australia.
It has considered that her partner would remain in Australia to complete his bachelor’s course and potentially study the master’s course. It has considered the financial and emotional effects on him and the applicant if her visa is cancelled. While it accepts this will result in hardship for them both, as her partner holds a temporary visa it does not accept this represents a compelling need to remain in Australia. The Tribunal places neutral weight on this consideration.
The extent of compliance with visa conditions
The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on her Student visa.
The Tribunal gives this factor neutral weight.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal considers that there would be hardship for both the applicant and her partner if the visa is cancelled.
The Tribunal as noted above accepts she is genuine and credible in her claim that she now wishes to remain in Australia to study a package of courses leading to a Bachelor of Nursing. It accepts she has been working in aged care for two years and wishes to study in this area which she is passionate about. It accepts it would be more onerous for her to return to Nepal and enrol, to a obtain similar qualifications as it has been a long time since she finished high school; and it is difficult to enrol and study as a mature age student in Nepal. It accepts the course would not be as good and her employment prospects not as strong if she completed a course in Nepal as opposed to Australia. It accepts she would not gain the support of her parents and that they may try and marry her to another person. It accepts it would be difficult for her to return without qualifications and there would be much shame for her, as well as her parents.
The Tribunal accepts she is in a de facto relationship with Mr Unique Shrestha, who also holds a Student visa. It accepts they rent a house and share the financial burden of living in Australia. It accepts if the visa is cancelled the lease would need to be broken.
The Tribunal accepts that if her visa is cancelled; the applicant will depart Australia, but Mr Shrestha will remain in Australia on the subclass 500 visa. It accepts it is his intention to remain and apply for a further visa. Once offshore, there are no restrictions on the applicant applying for a visa, however under Public Interest Criterion (PIC) 4013 she may not be granted a further visa for three years from the date of cancellation unless she meets PIC 4013(1)(b), which may be difficult. It accepts therefore that the cancellation may result in the separation from her partner for at a minimum until 14 November 2026, as she most likely would be unable to satisfy the criteria in PIC 4013. The Tribunal accepts the separation would be lengthy, difficult emotionally, financially and mentally for the applicant and her partner. It accepts they could meet outside Australia and he could return to Nepal for some periods.
It accepts that there would be considerable hardship for both the applicant and her partner if her visa remains cancelled as she would need to depart.
It has also considered her employment at the aged care centre and the support she provides to the residents.
The Tribunal accepts there will hardship for the applicant, her partner and to a lesser extent her employer and the residents where she works if the visa is cancelled. It gives this considerable weight against cancelling the visa.
Circumstances in which the ground of cancellation arose
The ground for cancellation arose as a result of the applicant’s breach of condition 8202, as she was not enrolled in a course of study from 4 August 2022 to 25 October 2023.
The Tribunal has considered the evidence above, specifically that the physical and mental effects for the reasons she claims led her to not being enrolled. While it accepts these circumstances were difficult for her; it has rejected these as reasons for her lack of enrolment in the relevant period and found her purpose of being in Australia was not to study. Other than her being young and making mistakes it does not accept the circumstances which led to her non-enrolment in the relevant period were beyond her control. Therefore, the Tribunal gives this weight in favour of exercising its discretion to cancel the visa.
Past and present behaviour of the visa holder toward the Department
There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past.
The Tribunal gives this consideration neutral weight.
Whether there would be any consequential cancellations under s 140
The applicant’s partner is not a dependent on her Student visa. She has no children. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were cancelled. The Tribunal gives this factor neutral weight.
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

There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled the applicant would likely be granted a Bridging visa for a short period of time to allow her to finalise her affairs before returning to Nepal. If the applicant remained in Australia without a valid visa, she would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that she intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under public interest criterion (PIC) 4013 she also may in some cases not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore.
There is no restriction on the visa she can apply for once she leaves Australia.
The Tribunal gives this consideration neutral weight.
Whether Australia’s international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
When asked by the Tribunal whether she had any fear of returning to Nepal; she said she did not. However, she had referred to her parents forcing her to marry another person were she to return. The representative referred to this in his oral submissions at hearing. The Tribunal is of the view that her claims can be fully considered via a protection visa application if she fears the relevant harm on return. The Tribunal is of the view that this is the appropriate mechanism for assessing her claims if she fears return to Nepal .
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matter
The Tribunal has considered all the applicant’s circumstances individually and cumulatively. The Tribunal considers the circumstances in this case make it difficult to determine whether to exercise its power to cancel the visa. The Tribunal acknowledges that it must be satisfied in the circumstances following consideration of all the evidence to exercise its power to cancel the visa.
The Tribunal is satisfied that the applicant was young and made mistakes and that her purpose of being in Australia was not to study while holding a Student visa in the period of non-enrolment. It accepts that the circumstances that led to the cancellation of the visa were not beyond her control. It found her evidence credible and convincing that she is passionate about wanting to study nursing, being consistent with her work in the aged care sector for the last two years. It accepts that studying in Australia would provide her with the best opportunities. The emotional and financial hardships for her de facto partner and the applicant in being separated, and the consequences of that, as he wishes to stay in Australia and study a master’s degree would be considerable. If the visa was cancelled as PIC 4013 applies it would make it more difficult for them to reunite in Australia.
While the breach of condition 8202(2) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia, as there are factors against cancelling the visa, where considerable weight has been placed on the hardship faced by the applicant and her partner, considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Date(s) of hearing:  18 June 2025
Representative for the Applicant:       Mr Hem Bhatta
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.