Hernandez Sepulveda (Migration) - [2025] ARTA 402

HERNANDEZ SEPULVEDA (MIGRATION) [2025] ARTA 402 (5 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Joan Sebastian Hernandez Sepulveda
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2317171

Tribunal:General Member P Hunter
Place:Sydney
Date: 5 March 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 05 March 2025 at 1:03pm
CATCHWORDS
MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa – applicant was not enrolled in a full-time registered course – breached condition 8202 – witnesses did not actually provide evidence consistent with his claims of payment of course fees – no corroborative evidence that applicant paid fees to his education agent as he claimed – no compelling need to remain in Australia – decision under review affirmed
LEGISLATION
Migration Act 1958, s 116
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 on 20 October 2023 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under s 116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with a condition of the 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.
The applicant appeared before the Tribunal on 5 December 2024, via MS Teams video to give evidence and present arguments. This hearing was rescheduled when it became apparent that the applicant required the assistance of an interpreter.
The applicant appeared at a further hearing before the Tribunal on 18 December 2024, via MS Teams video, to give evidence and present arguments. The hearing was rescheduled due to difficulties with the applicant’s audio connection.
On 5 February 2025, the applicant appeared in person at a hearing before the Tribunal. The hearing applicant was conducted with the assistance of an interpreter in Spanish and English. The Tribunal also received evidence from the applicant’s girlfriend Jennifer Ortega Serrato and friend Angie Tatiana Sugrer Puerto. The applicant was represented in relation to the review and his representative also attended 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
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(b). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
Background
The applicant is a 26 year old male citizen of Colombia. He was granted the visa on 30 November 2020 and it was valid until 5 September 2024. The applicant was enrolled to undertake study in a Certificate IV in Business, a Diploma of Business and an Advanced Diploma of Business.
On 22 September 2023, the Department sent to the Applicant via email, and registered post, a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act. The applicant was informed that his Provider Registration and International Student Management System (PRISMS) records indicated that the applicant had not been enrolled in a registered course of study since 31 January 2022. The applicant was advised that this may be a breach of condition 8202(2)(a) of his visa and it may form a ground for cancellation of his visa. The applicant was also invited to provide comment to the Department.
On 29 September 2023, the applicant replied to the NOICC by email, he wrote that he was not happy with the Australian Harvard International College (AHIC) as they did not provide him with Confirmation of Enrolments (CoE) after his English course. He wrote that he had decided to continue his studies at another college in Sydney, and he requested time to provide a new CoE. The applicant also submitted the following documents:
·His NSW Photo ID.
·A copy of his passport.
·An email from Australasia Technology Institute (ATI) in Spanish.
On 9 October 2024, the representative of the applicant submitted to the Department the following documents:
·A CoE issued by ATI, in a Diploma of Project Management with course dates from 9 October 2023 to 6 October 2024, created on 6 October 2023.
·A CoE issued by ATI, in an Advanced Diploma of Project Management with course dates from 7 October 2024 to 4 October 2026, created on 6 October 2023.
·Confirmation of Overseas Student Health Insurance.
·A Student Contact Detail Form for ATI.
·A receipt for the payment of fees to ATI.
·A letter of explanation from the applicant which repeated his earlier submissions and requested advice as to whether he needed to re-apply for a student visa in order to continue his studies.
The delegate was satisfied with the material before them that the grounds for cancellation under s 116(1)(b) of the Act were made out. The delegate considered the submissions of the applicant, however they found that circumstances weighed in favour of the exercise discretion to cancel, and on 20 October 2023, determined to cancel the visa.
On 25 October 2023, the Administrative Appeals Tribunal (AAT) received an application for review from the applicant together with a copy of the decision record of the delegate.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
On 4 December 2024, the representative of the applicant submitted the following relevant documents:
·Letter of explanation of the applicant.
·Form 54 Family Composition form.
·A letter of employment for the applicant from Labourpower Recruitment, confirming the applicant has been employed since 20 March 2022 on average 17 hours per week .
·A letter of personal reference for the applicant from Alisha Frances, dated 3 December 2024.
·A letter of personal reference for the applicant from Cesar Andres Gil Hernandez, the applicant’s brother, dated 3 December 2024.
In his letter of explanation the applicant set out the following information:
i.He came to Australia with the goal of continuing to improve his English for 6 months and then continue his career as a commercial operator.
ii.While at school he had obtained some scholarships to study psychology related subjects and English. When he finished high school he wished to continue to study English and the idea of emigrating from his country to continue to study English began. He had a lot of family in Australia including his two brothers, uncles and cousins.
iii.When he was studying in Colombia he got an opportunity with a large company to study and intern to be a commercial operations technician. While doing the internship he was given a contract and the position of supervisor in a mini-market. He was also offered a long term work contract. However, he was still thinking about studying English in Australia.
iv.One of his brothers had been in Australia for 9 years and is awaiting a further student visa renewal. His other brother has been in Australia for 8 years and is sponsored by his uncle’s company. He also had some uncles who are residents of Australia.
v.He arrived in Australia on 12 December 2019 to study English. Then the COVID-19 pandemic occurred. One of his brothers was in Colombia at the time travel restrictions were put in place and he was unable to return to Australia until 2022. His other brother moved to live in Canberra to work for his sponsoring company. The applicant continued with his studies in English but after six months he wished to do something about his visa and he met a woman who became his student agent. She recommended the AHIC for him to undertake business and sales related studies. He made payments to his agent and she was responsible for liaising with AHIC on his behalf. He obtained a new student visa and three CoE’s for studies at AHIC (the applicant attached copies of the relevant CoEs).
vi.He continued with his life and studies in Australia and did not know what was happening. He did not think that anything was wrong and kept paying his agent every three months relevant course fees. Then he received a letter from the Department asking about his studies. He realised that he had been scammed.
vii.He has enrolled in another school and continued his studies while awaiting review at the ATI (the applicant attached copies of the CoEs provided to the Department in the Diploma and Advanced Diploma of Project Management).
On 17 December 2024, the applicant submitted the following additional documents:
·A letter dated 12 December 2024, from ATI confirming that the applicant was enrolled in a Diploma of Project Management with course dates from 13 May 2024 to 11 May 2025.
·An email dated 12 December 2024, from student services at ATI regarding the applicant’s attendance rate.
·An email to the applicant from ATI confirming a term break from 16 December 2024 to 6 January 2024.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(b) if the Minister is satisfied that the holder has not complied with a condition of their visa. In this instance condition 8202 was attached to the applicant’s visa
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
The applicant confirmed at the hearing that he was aware that his visa was subject to conditions, and that one of those conditions was that he maintain enrolment in a full time registered course.
However, the applicant disputed that he had breached a condition of his visa. The applicant maintained that he had continued to study at the AHIC for the period between 31 January 2022 and 5 October 2023, when the Department had found he was not. When asked what evidence of this claim he had, the applicant told the Tribunal that he had produced a CoE’s for that period and he had made payment of fees.
The Tribunal acknowledge that the applicant had produced several CoEs for the period for his study in the Certificate IV in Business, with course dates from 18 January 2021 to 16 January 2022, then the Diploma of Business with course dates from 17 January 2022 to 9 July 2023 and finally the Advanced Diploma of Business, with course dates from 10 July 2023 to 7 July 2024. However, the CoE’s that he had produced also record that they were created on 25 January 2021, and last updated on 27 January 2021. It was put to the applicant that they may be evidence that he obtained an enrolment but not that the enrolment continued beyond 27 January 2021.
The applicant was asked whether he had evidence of ongoing payment of his course fees, such as receipts issued by AHIC. The applicant claimed that he had transferred money directly to his former agent for the payment of course fees so he would not have been issued with receipts. He claimed to have made regular transfers to his agent for instalments of fees, around every three months. He said that he did not know that his former agent was not passing the funds on to AHIC and he only became aware of this after his visa had been cancelled. The applicant was asked about the identity of his former agent, he claimed it was Ms Maria Jaramillo from Yes Australia. The Tribunal questioned the applicant as to whether he had any bank records to support his claim of ongoing payments to his agent, and he said that they could not be located. Under further questioning the applicant provided evidence that he had transferred money from his personal Commonwealth Bank account, he said that he went twice to the bank to request a statement but that they could not give him a satisfactory answer as to why an account statement could not be produced. He claimed that the first time he made such enquiries with the Commonwealth Bank it was in 2023, around the time he received the NOICC. The Tribunal put to the applicant that it was highly irregular that an Australian bank could not provide him with a statement. The applicant offered in reply that maybe there was a communication issue, he was told that here was an option on his phone internet banking that he could bring up past transfers but the screen kept crashing. The Tribunal is not satisfied that the applicant could not access his past bank statements from a bank operating in Australia. Particularly, if he had applied for these records within a reasonable time proximate to the relevant transactions. If such transaction records exist the Tribunal considers that the applicant could have taken reasonable steps to locate them to support his claims.
The Tribunal asked the applicant whether he had evidence of coursework that he had undertaken in the relevant period and he said that he had the CoE’s. Again the Tribunal identified to the applicant that these were only evidence that he was enrolled on the date they were last issued. He was asked about attendance at class and work in class, and the applicant told the Tribunal that everything was online. The Tribunal queried whether the applicant would still be attending classes online in 2022 and 2023, and he claimed that he was. He said that he did not have any records of coursework or assignments that he submitted because AHIC was not requesting any he undertake coursework or assessments. The Tribunal questioned the applicant about his current studies, he agreed that he had to undertake assignments and submit coursework for assessment. He was asked why the courses at AHIC would be any different, and he was asked how he could undertake a qualification in this manner. In response the applicant said that his agent had told him that all he had to do was attend.
The applicant was asked whether he had any proof of attendance and he said that his agent was the one handling everything and she was never able to give him any proof of attendance. When asked whether he had asked his teachers about records of his progress or proof of attendance the applicant said that the classes were always full, and he did not feel it was necessary to attend the classes personally. He also said that he went to the AHIC to ask for evidence and they told him that the agent had not gotten in touch with them. He did not have any proof of his contact with AHIC.
The Tribunal noted that during the period he claimed to have undertaken his studies at AHIC he would have completed the Certificate IV and the Diploma of Business, he was asked whether he had a copy of the award of the qualifications. In response the applicant said that he never received a copy. The Tribunal asked him whether he pursued a copy of the qualification as it was the purpose of his study and stay in Australia. The applicant said that his former agent had told him that he would get them all at the end of his courses. He claimed that it was all complicated because of the impact of the COVID-19 pandemic. The Tribunal asked the applicant if he had any record of his communication with his former agent to corroborate his evidence, such as emails, letters or texts. In response the applicant said that it was all just in phone calls. He did not produce any phone records.
It was put to the applicant that it was unusual that AHIC continued to allow him access to the online courses or that his teachers did raise questions if his fees were not being paid. He was asked whether he received any communication from AHIC. The applicant claimed that all communication went through his former agent. The applicant said that AHIC did not get in touch with him or send any messages about non-payment or attendance at his course. He said that his agent never forwarded anything to him. He claimed that he assumed everything was alright until he received the NOICC from the Department and then he made efforts to enrol in another education provider. It was not clear to the Tribunal why the applicant did not focus some effort in identifying the problem with his existing studies, if they were genuinely ongoing as he claimed.
The Tribunal asked the applicant if he had any evidence of study he had undertaken at AHIC between 2021 and 2023, and he said that at first he was occupied obtaining a new enrolment and he did not thoroughly pursue things because it took him a while to get on top of things. When the applicant was asked if he took any action against his former education agent. In response, he said that he tried to get in contact with her and she was not responding, when he went to look for her at the agency they told him that she had been removed from the role. He claimed that this was all the information that the agency could give him about her. It was noted that according to the CoE’s he had submitted that he would have transferred fees in excess of $15,000 to the agent, the applicant was asked whether he had taken any action to recover this money, register a complaint or report the matter to the police. The applicant said that he had not because he was focusing on his visa refusal.
The applicant was asked to explain why, when he responded to the NOICC he did not maintain that he had been enrolled for the period for the Department identified that he had not, or that he had made payment to an agent for fees which had been passed on. He was questioned why he had claimed instead that he was not happy with the AHIC, and that although they had got him his CoE’s he was not pleased with the lack of communication and that he had decided to continue with another college. The applicant initially suggested that he may have been referring to the education provider he had when he studied English at Greenwich College. The applicant also said that there may have been a miscommunication to the Department as he did not have assistance or an interpreter at the time. The Tribunal then identified to the applicant that a similar submission was made by his representative to the Department in response to the NOICC on 9 October 2023. The applicant said that he believed that he would have put that information forward. He claimed to have the letters. The Tribunal identified that it also had a copy of the letters and information reflective of those claims was not evident. The applicant has not produced any further letters. Teams

The applicant was asked if he had any further evidence to corroborate his claims and the information contained in his PRISMS records, was discussed with the applicant pursuant to s 359A, and it was identified that the relevant information was that he was not recorded as being enrolled in a course of study between 31 January 2021 until 6 October 2023, when he obtained his enrolment in the Diploma of Project Management. In response the applicant said his witnesses would corroborate his evidence, particularly he claimed that Ms Puerto had a similar experience with the same agent.
Ms Puerto was also from Colombia and the holder of a student visa. She told the Tribunal that she had known the applicant for approximately four and a half years. He was a flatmate of her boyfriend. She claimed that when she became aware of his visa situation it was a bad time for the applicant. She claimed that the applicant may have had depression during the pandemic and he also had problems with his family. She said it was a tough time for his mental health. Ms Puerto said that she was living with the applicant from January 2022 to July 2022, after this she returned to Colombia for a period of two months. She also spent time with the applicant after she returned. She said in 2022 that she also had a problem with her agent who she claimed was the same agent engaged by the applicant. When asked the name of the agency, Ms Puerto responded it was “Just Study”. She said that it was not called “Yes Australia”. She did not remember the name of the agent she dealt with but it might have been Ms Maria Jaramillo. Her problem with this agent was that the Department had requested that she undergo a medical assessment and the agent did not inform her of this request. Her visa was subsequently refused and she had to seek a review before the AAT. She said that she did not have any issues associate with the agent not passing on her course fees. She paid her education provider directly.
Ms Serrato was from Colombia and also the holder of a student visa. She said that she had known the applicant for three years. She believed that he had suffered a severe bout of depression between 2022 and 2023. She said that the applicant had isolated himself from everyone, and she understood that he was going through personal and family issues at that time. When asked whether she observed whether the applicant was engaging in studies during the period January 2022 and October 2023, she said that she could not ascertain that because the applicant was isolating himself and not keeping in touch.
The Tribunal noted that the applicant’s witnesses did not actually provide evidence consistent with his claims of payment of course fees and his ongoing study, although they had indicated that he may have experience symptoms consistent with depression in the past. The applicant was asked whether there was anything else he wished to tell the Tribunal in relation to the period between January 2022 and September 2023 and his was reminded of his affirmation to tell the truth. The applicant said it was personal but that he could give information if the Tribunal wanted. It was identified to the applicant that if he had relevant evidence that he wished for the Tribunal to know about in relation to the visa cancellation it was his opportunity to present it. He was told that it was not for the Tribunal to make out his case and the Tribunal identified ongoing concerns with the reliability of his claims that he was studying. The applicant said that Ms Puerto had used the same agency as him because he had referred Ms Puerto to the agency. He said that he was going through hardship due to a breakup with a partner and he was not very financial due to COVID. The applicant suggested that he was very depressed and this was a reason why he was not putting a lot of attention into his course or pursuing proof of his attendance. When the news came about the cancellation of his visa his parents travelled to Australia to support him.
The Tribunal has considered the totality of the evidence before it. As discussed with the applicant at the hearing, according to the PRISMS website,[1] 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 Education, Skills and Employment, 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 Education for Overseas Student Legislation. 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.
[1] >
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. It is not satisfied that the claims of the applicant that he had maintained his enrolment and continued his study throughout 2022 and up until September 2023 are credible. There is no specific corroborative evidence to support the claims of the applicant that he continued to participate in his studies during this period. He also has no corroborative evidence that he paid fees to his education agent as he claimed and he was a victim of fraud.
The Tribunal explored with the applicant at the hearing various forms of documentary or other evidence that could have possibly corroborated his claims. The applicant had an excuse for each one which the Tribunal did not consider to be transparent. It does not accept that the applicant could reasonably expect that he continued to be enrolled in circumstances when he was not engaging in any communication with his course provider, not attending courses in person and not submitted any work. It does not accept that he would not access to any record of his ongoing participation in his course if he was truly able to access it online. It is also not accepted that he would not have any financial records of payments he made in excess of $15,000.
Furthermore, the claims of the applicant that he was attending his course and that he had paid all relevant fees to his agent are not evident in the responses by both the applicant and his agent to the Department’s NOICC on 29 September 2023 or 9 October 2023. If this was truly the state of affairs, as the applicant claimed to the Tribunal, it is expected that he would have disputed in the first instance when invited by the Department to comment that he was without an enrolment. Instead, the applicant immediately arranged an enrolment with another institution and asked whether he needed to apply for a new student visa. It is considered that the applicant has had considerable time to accumulate evidence to support his claims of agent fraud or ongoing attendance and enrolment in his courses with AHIC. Even if he was focused on his review application, he is represented and well supported by his family who could have pursued evidence or redress on his behalf. The fact that the applicant has also not pursued any redress against his former agent, in circumstances where he claims to have been defrauded of in excess of $15,000 and there were serious consequences for his visa, further adds to the Tribunal’s concerns regarding the reliability of the applicant’s claims.
The Tribunal has also considered the evidence of the applicant’s witnesses. It is noted that Ms Puerto identified a different company that acted on her behalf. Even if the Tribunal accepts that this was a mistake, her experience was a lack of communication and not that she had been defrauded of course fees as claimed by the applicant.
Consequently, the Tribunal finds on the evidence that the applicant was not enrolled in a registered course of study between 31 January 2022 and 6 October 2023.
As the applicant was not enrolled in a full-time registered course for this period the applicant had not complied with condition 8202(2)(a), and the Tribunal is satisfied that the ground for cancellation in s 116(2)(b) arises
Consideration of the discretion to cancel the visa
At the time of the decision of the delegate there were no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. However due to the advent of the Migration Amendment (Strengthening Reporting Protections Regulations 2024(Cth) which introduced a new reg 2.43A, there are now prescribed workplace exploitation matters that a decision maker must have regard to in determining whether to cancel certain temporary visas including student visas. The Amending Regulation commenced on 1 July 2024, and apply in relation to a breach of a visa condition that occurs before, on or after 1 July 2024. In the absence of evidence that the applicant has been involved in a ‘workplace exploitation matter’ which is prescribed under regs 2.43(2)(a) and (b), they are mostly not relevant to the Tribunal’s assessment in this particular matter. However, reg 2.43(2)(d) still operates.
Reg 2.43(2)(d) Whether there is any evidence that the visa holder is not complying, or is no longer seeking to comply with the purpose of the visa
The Tribunal has found that the applicant did not comply with condition 8202(2)(a) for a considerable period, from 30 November 2020 to 5 September 2024, approximately 47 months. The purpose of the student visa is for an applicant to engage in approved study in Australia. The requirement in condition 8202(2)(a) goes to this core purpose of the visa. The Tribunal places considerable weight on evidence of the duration of the applicant’s non-compliance.
In response to the NOICC the applicant produced an enrolment in further courses in Project Management at a different institution. The applicant claimed that he was attending his current diploma course and progressing in accordance with his enrolment. He believed that he would complete the Diploma of Project Management in May 2025, as scheduled.
The applicant’s representative submitted that the applicant was definitely back on track with his studies.
It is accepted that the actions of the applicant in returning to study are consistent with him seeking to comply with the purpose of the visa in the future.
The Tribunal has also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.
The purpose of the visa holder’s travel and stay in Australia, ad whether the visa holder has a compelling need to travel or remain in Australia
This consideration is similar in part to the mandatory consideration in reg 2.43(2)(b), the purpose of the applicant’s temporary stay in Australia was so that he could undertake approved study in a full time registered course. The applicant was granted his visa for approximately 4 years to enable him to do this, and she ceased studying after just over a year. Further, he has not on his evidence to the Tribunal recognised that he was not engaging in study. This is not considered in line with the purpose of the visa.
The applicant told the Tribunal that his purpose of remaining in Australia was to finalise his studies in project management and then he could go back to Colombia with a full career established. He had changed his course of study from business to the Diploma and Advanced Diploma of Project Management because he claimed it was more related to the proper management of a business enterprise and he thought it would be better for the successful operation of a business in Colombia. He claimed that it would tie in with a clothing and manufacturing business that his family already had.
The Tribunal accepts the evidence that the applicant now appears to be engaging in studies in Australia consistent with the purpose for which the visa was granted. It has also considered the evidence submitted from the ATI that the applicant was currently enrolled and attending his course. The Tribunal weighs this with the evidence of the applicant that he was content in the past to engage in study online and not engage or submit any work. It notes his claims in his letter of submission, dated 11 November 2024, that he was also motivated to apply for the visa in order to regularise his stay in Australia during the pandemic and to gain further experience in English.
While it is accepted that the applicant is now studying consistent with the purpose of the visa, it is not satisfied that he has demonstrated a compelling need to remain in Australia. He has had the benefit of time in Australia to gain experience with his English. It is not demonstrated that he could not undertake relevant study in his home country, or the family clothing manufacturing business
The Tribunal gives this factor a little weight in favour of the applicant.
The extent of compliance with visa conditions
The Tribunal has found that applicant did not maintain enrolment for a lengthy period from 31 January 2022 to 5 October 2023, over 20 months. His non-compliance with condition 8202 is not disputed and it is considered to be significant. The applicant confirmed that he was aware of the condition and the requirement to maintain enrolment in a registered course goes to the core purpose of the grant of the visa.
The Tribunal acknowledges that there is no evidence before it that the applicant has not complied with any other conditions of his visa.
Although there is no other evidence of non-compliance other than the above, considering the
period the applicant was not enrolled in a registered course of study prior to the date of
cancellation, the Tribunal considers that this factor weighs in favour of the exercise of the
Tribunal’s discretion to cancel the visa. The Tribunal gives this factor weight in favour of cancellation.
The degree of hardship that may be caused
The applicant said that if his visa remained cancelled that all his dreams would be thrown aground and he would lose a great opportunity to obtain the knowledge that he needs. He said that it would be devastating to lose his opportunity to study for a situation which was unjust. He also claimed to have a lot of family in Australia, including his brothers and nephews and it would be hard for him to leave them.
Ms Puerto in her evidence said that she thought that there would be a bad emotional and psychological impact for the applicant if his visa remained cancelled. She said it would affect their friendship which had developed in Australia. She claimed that the applicant had taken the visa cancellation “pretty bad”.
Ms Serrato told the Tribunal that the applicant had suffered a severe emotional downturn when the visa was cancelled and his parents had even come to see him because they were worried about him. She also spoke of a period when the applicant remained in his room and was not engaging with friends which may have been around the time the Department found that the applicant was not enrolled.
The Tribunal attempted to elicit from the applicant evidence about any psychological or emotional condition he may have experienced or continued to experience. It acknowledges his evidence that he found the COVID-19 pandemic and separation from his family difficult.
The applicant also told the Tribunal that when his visa was cancelled by the Department his parents came to Australia to support him. His brothers also stepped up to support him. He confirmed that his family would still support him if his visa remained cancelled.
Despite the incidental oral evidence from witnesses of depression, there is no medical evidence that the applicant suffers from any mental health condition. The Tribunal accepts that the applicant would be emotionally distressed and disappointed if the visa remained cancelled. It is not accepted that the evidence rises to a degree of a psychological illness. It accepts that he would miss his family members, however the student visa is a temporary visa and the visa under review only permitted the applicant to remain in Australia until 5 September 2024 in the first instance.
It is acknowledged that he has approximately two months remaining on his Diploma of Project Management, and that if the applicant was required to depart Australia because the visa remained cancelled he would suffer further financial loss in the terms of the fees he had paid to date. It is not however demonstrated that the applicant is without further study options in his home country, and he has had several years of study to obtain the benefit of English language skills he claimed that he desired.
The Tribunal has not accepted that unjust circumstances have led to the finding that the applicant did not comply with his visa.
The Tribunal gives this consideration a little weight in favour the applicant and not exercising the discretion to cancel the visa.
The circumstances in which ground of cancellation arose.
The Tribunal has found that the grounds for cancellation have arisen because the applicant was not enrolled in a full time registered course between 31 January 2022 to 6 October 2023.
The applicant disputes this finding. The Tribunal has found the evidence of the applicant to be unreliable and in the absence of corroborative evidence is not satisfied that it was credible. It is not accepted on the evidence that these are circumstances outside his control. It does not accept the claims of the applicant that the circumstances which gave rise to the cancellation were unjust.
The applicant has not accepted any responsibility for the circumstances which may have given rise to the ground for cancellation. While the Tribunal may accept that the applicant had difficulties with communication with his former agent. It does not accept that the applicant could reasonably have held a belief that he was enrolled for the relevant period, when he was not attending classes in person, engaging with his teachers or submitted coursework. It does not accept his excuses for the absence of any evidence about the payment of his fees or any confirmation from AHIC that he continued to be enrolled.
The Tribunal places considerable weight on this factor in favour of the cancellation of the visa.
The past and present behaviour of the visa holder towards the Department
According to the Department’s Procedural Instruction Manual, this factor is whether the applicant has been truthful and cooperative in their dealings with the Department.
The applicant did not make claims to the Department that he was enrolled and that he had paid relevant course fees, as were made to the Tribunal. However, there is no evidence that the applicant had not been cooperative in his dealings with the Department.
The Tribunal attributes this consideration neutral weight in the exercise of the discretion.
Whether there would be consequential cancellations under s 140
The applicant is single and he has no dependents upon his visa. There will not be any consequential cancellations if the applicant’s visa is to remain cancelled.
There is no weight attributed to this factor.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory legal consequences that may apply in the case of visa cancellation, including a difficulty obtaining a further visa. If the visa is cancelled the applicant may be subject to a restriction under s 48 of the Act and the applicant would have difficulties obtaining any further visas in Australia. Due to the operation of PIC 4013, the applicant may also be unable to be granted further visas offshore for three years from the date of cancellation.

The applicant told the Tribunal that if the visa remained cancelled and he had exhausted or ceased all lawful avenues of review, he would abide by any lawful direction to depart. The Tribunal is satisfied in these circumstances that the likelihood of the applicant being detained is remote.
It is accepted that the applicant wishes to remain in Australia. It is also accepted that cancellation would have further consequences and these would limit, his options to return for some time. These are the intended and legitimate consequences of cancellation.
The Tribunal gives this consideration neutral weight in exercise of the discretion.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a citizen of Colombo. There is no information that indicates that the visa cancellation would impact on Australia’s international obligations or that it would be in breach of Australia’s non-refoulement obligations.
When asked whether he had any fears about returning to his home country, the applicant said that before he might have, but presently things would depend upon the community. When questioned further he said that Australia was much more advanced in the way that it handled LGBTIQ issues and he was a bit socially ostracised in his community. The applicant told the Tribunal that he identified as bisexual.
The applicant also told the Tribunal he intended to return to Colombia on the completion of his studies and he had opportunities to work in a family business. He claims to be well supported by his family. If indeed the applicant has any genuine fears of harm arising from his sexual identity then it is of the view that these claims can be considered in a protection visa application which he has not yet made. The Tribunal considers that this is the appropriate mechanism for assessing his claims to fear to return to Colombia.
The applicant is does not have any children whose interests would be affected by the cancellation of the visa.
The Tribunal gives this factor no weight.
Any other relevant matters.
There are no other relevant matters on the material before the Tribunal.
Conclusion
In this matter the Tribunal the extent of the applicant’s non-compliance weighs in favour of the visa cancellation. The Tribunal is not satisfied that the circumstances which gave rise to the visa cancellation were outside the control of the applicant or that he has accepted any responsibility for these circumstances. It places weight on the duration of the period of non-enrolment and the fact that it is not satisfied that he has a compelling need to remain in Australia. While the Tribunal accepts that the applicant will experience some financial hardship and that he has re-engaged in study, other factors considered by the Tribunal were generally of low or neutral weight. On balance, the Tribunal finds that the considerations weigh more toward the exercise of the discretion to cancel the visa when assessed with than those counterbalancing factors in favour of the applicant at the time of this decision.
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: 5 December 2024, 18 December 2024 and 5 February 2025
Representative for the Applicant: Luis Manual Cuadros