Huang (Migration)
[2025] ARTA 2251
•28 July 2025
Huang (Migration) [2025] ARTA 2251 (28 July 2025)
Decision and
Reasons for Decision
Applicant:
Zexi Huang
Respondent:
Minister for Immigration and Citizenship
Tribunal Number:
2516825
Tribunal:
General Member F Robertson
Date:
28 July 2025
Decision:
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
Statement made on 28 July 2025 at 1:56pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in studies – applicant departed Australia for medical reasons – mental health issues – return to studies – decision under review set aside
LEGISLATION
Education Services for Overseas Students Act 2000 (Cth), ss 19, 33
Migration Act 1958 (Cth), ss 116, 140
Migration Regulations 1994, Schedule 8, Condition 8202; r 2.43
Statement of reasons
INTRODUCTION
This is an application for review of a decision made by a delegate of the Minister on 25 March 2025 to cancel the applicant’s 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 had not complied with condition 8202, which required the applicant to be enrolled in a full-time registered course. The delegate found that:
(a)the applicant had not been enrolled in a full-time registered course of study from 18 October 2023 to 11 February 2025; and
(b)the grounds for cancelling the visa outweighed the reasons not to cancel the visa.
The questions for determination in the review application are:
(a)is the ground for cancellation is made out; and
(b)if the ground for cancellation is made out, whether the visa should be cancelled.
The review application in this matter was filed on 4 April 2025. On 3 July 2025, the applicant sought that the hearing of the review application be expedited because the visa that had been cancelled would, if the cancellation was set aside, cease after 31 July 2025.
The review application was allocated to another member for hearing which resulted in a hearing being listed for 15 September 2025. The applicant’s representative, Ms Wan, wrote to the Tribunal pointing out that the applicant’s visa will have ceased by that time even if the cancellation were set aside and sought a hearing and decision before 31 July 2025.
The member to whom the review application was initially constituted was unable to accommodate a hearing and decision before 31 July 2025 and accordingly the matter was then reconstituted to me in circumstances where I was able to hear the review application on 28 July 2025 and would be able to determine the applicant prior to 31 July 2025.
Accordingly, on 23 July 2025, the review application was listed for hearing on 28 July 2025. I heard the matter that day, ultimately on the papers. The applicant was represented in relation to the review by a solicitor, Ms Wan.
After reviewing the evidence and material before the Tribunal, I have determined that the decision under review will be set aside and I will substitute a decision not to cancel the first named applicant’s Subclass 500 (Student) visa
RELEVANT PRINCIPLES
Section 116(1)(b) of the Act, provides that the Minister, or their delegate, may cancel a visa if they are satisfied that a visa holder has not complied with a condition of the visa. However, the Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
There are currently no prescribed circumstances under s 116(2) requiring the visa not be cancelled, or under s 116(3) requiring the visa to be cancelled, that apply.
Condition 8202 is in the following terms:
(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.
For the purposes of this application, it is sufficient to observe that condition 8202 as it applied to the applicant required the applicant:
(a)be enrolled in a full-time registered course;[1]
(b)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;[2]
(c)has not been certified by his or her education provider, as not achieving satisfactory course progress as specified;[3] and
(d)has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified.[4]
[1] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(a).
[2] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(b).
[3] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(c)(i).
[4] Migration Regulations 1994 (Cth), Sch 8, Condition 8202(2)(c)(ii).
If I am satisfied the applicant has breached condition 8202, I must proceed to consider whether the visa should be cancelled under s 116(1)(b). In determining whether the visa should be cancelled, I 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Is the ground for cancellation made out?
The first question I must determine is whether the ground for cancellation is made out, in other words whether the applicant has breached condition 8202 of Schedule 8 the Regulations.
The Notice of Intention to Consider Cancellation (NOICC) identified the ground for cancellation as follows:
It appears you have not complied with condition 8202(2)(a) of your visa because you have not been enrolled in a full-time registered course.
The Department has access to the Provider Registration and International Student Management System (PRISMS), which provides the Confirmation of Enrolment (CoE) and study records of international students registered to study in Australia. PRISMS indicates you have not been enrolled in a full-time registered course since 18 October 2023 and therefore have not complied with the requirements of subclause (2)(a) of condition 8202.
Based on this information, there appear to be grounds for cancelling your visa under section 116(1)(b) of the Migration Act because you have not complied with a condition of the visa.
As is clear, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course of study.
The applicant concedes that the applicant did not maintain enrolment at the time of cancellation and, as such, there existed grounds for cancellation of his visa.[5]
[5] See written submissions dated 9 May 2025, [9].
I have also independently considered whether the ground for cancellation is made out. The evidence before me indicates that the applicant was not enrolled in a full-time registered course of study from 18 October 2023 until, at least, 29 January 2025.
Based on the evidence and material before me, I find the applicant was not enrolled in a full-time registered course. Accordingly, I am satisfied that the applicant has not complied with condition 8202(2)(a).
Should the visa be cancelled?
Having found that the applicant has not complied with a condition of the visa, I must now 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.
What is the applicant’s case?
The applicant relies on written submissions dated 9 May 2025 together with attachments. The applicant’s case is that there are compelling factors which weigh in favour of not cancelling the applicant’s visa.
The applicant claims that he departed Australia for medical reasons between October 2023 and May 2024. It is contended that after the applicant’s return, he had missed the Term 1 intake and later missed the Term 2 intake because of issues with his student email address such that he was not able to re-enrol until late January 2025.[6]
[6] See Appendix 8 to the written submissions dated 9 May 2025.
The evidence before me indicates that the applicant attended the Emergency Department at the Royal North Shore hospital on 14 September 2024.[7] I note the medical certificate is dated 15 September 2024 at 4:42am and that it certifies the applicant as being ‘unable to attend normal duties’ on 15 September 2024. Otherwise note that the medical certificate next to the words ‘associated diagnoses’ lists ‘none’ and otherwise the medical certificate does not provide any indication as to why the applicant attended the emergency Department on that date.
[7] See Appendix 5 to the written submissions dated 9 May 2025.
The applicant has provided a translated medical report from Hebei Medical University First Hospital which also appears to include laboratory test results and imaging reports. The material totals 51 pages overall. Among other things, the report notes the applicant having low mood and emotional depression. It reports the applicant self-harming and finding the sight of blood soothing. It also notes the applicant reporting recurring feelings of inferiority and self-blame, hopelessness about the future and being a burden to his family.
On examination of the applicant mental status resulted in the applicant being admitted with a diagnosis of recurrent depressive disorder. The report notes that on discharge the applicants psychiatric symptoms appear to have eased with a notable improvement in irritability and overall mood. In noted that his mood was generally stable and that the applicant denied experiencing any negative thoughts, showed good compliance with his treatment, had plans for the future and retained on site. It notes that the applicant was admitted between 15 January 2024 and 25 January 2024.[8] It also records subsequent follow up visits following the applicant’s discharge from hospital.
[8] See Appendix 2 to the written submissions dated 9 May 2025, p 31.
A further report appears to record a visit on 23 January 2025.[9] That report notes:
The patient’s mood has remained stable in recent weeks and has shown overall improvement compared to before. After nearly a year of rest, the patient has expressed the intention to return to school. During the course of the illness, sleep and appetite have been normal, with no other significant abnormalities reported.
[9] See Appendix 2 to the written submissions dated 9 May 2025, p 22.
The applicant also relies on a medical report from the same hospital in China.[10] This report is written in English and is dated 20 September 2024. In addition to recording the medication prescribed to the applicant, the report indicates:
The patient has been taking medication regularly since the last visit, and no significant adverse drug reactions have been observed. The patient complains of recent permit in difficulty controlling his emotions. Recently, I still have a sense of inferiority.,Because it’s easy to fall into a little thing, I’ll contact my former friends and ask them to forgive themselves for their previous badness. Patients complain that they need to be sympathised and forgiven by others, so that they can feel more comfortable. No significant abnormalities were observed. [sic]
[10] See Appendix 7 to the written submissions dated 9 May 2025.
The applicant also relies on correspondence dated 14 January 2025, from Ms Buddo, a Care Coordinator at the ‘Way Back Support Service’ (WBSS). The author notes that the WBSS is designed to support people have recently experienced a mental health crisis. It notes that the applicant was referred to the WBSS in mid-September following a mental health crisis and subsequent suicide attempt. It notes that the applicant has a diagnosis of depression, anxiety and post-traumatic stress disorder. It indicates that those diagnosis is together with current life stressors impact the applicants functioning and overall well-being on a daily basis. It otherwise recommends that special considerations be taken into account in relation to the applicant studies. The applicant also relies on various photographs said to show injuries that occurred as a result of self-harm.[11]
[11] Appendix 6 to the written submissions dated 9 May 2025.
Consideration
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
I am satisfied that the purpose of the applicant’s travel to, and stay in, Australia was for the purposes of study.
In furtherance of this intention, I find the applicant successfully completed an English Entry course in 2023. I accept the applicant's claim that his continued presence in Australia is linked to his genuine intention to complete his course of study. His re-enrolment in January 2025, supported by documentary evidence, confirms this intention. Despite a prolonged absence from formal study, the applicant did re-enrol into his course for Term 1 2025. That enrolment has ended only because after the cancellation of his student visa he became subject to a condition not to undertake study.
I accept this factor weighs against cancelling the visa.
Extent of compliance with visa conditions
It is submitted that other than non-compliance with condition 8202, the applicant has otherwise complied with all other visa conditions. There is no evidence that the applicant has failed to comply with a visa condition other than condition 8202. I accept that he has complied with his visa conditions other than condition 8202.
The applicant submits that this factor ‘attracts only some weight’ in favour of cancellation. I do not agree. In my view, condition 8202 is a fundamental condition attached to the grant of a student visa and, accordingly, non-compliance with that condition is not a minor matter. The breach of condition 8202 is serious. This condition is central to the integrity of the Student visa program. I further place weight on the fact that the period of the applicant’s non-compliance was lengthy and was, on any view, a period that lasted more than half of the duration that the student visa had been granted for.
While there is no evidence of non-compliance with any other visa condition, I consider the failure to maintain enrolment over such an extended period to be a significant matter and, but for the applicant’s particular circumstances, would have given it significant weight in favour of cancellation. However, in attributing weight to this factor I also weigh that the applicant was experiencing significant difficulties with his mental health, including multiple periods of hospitalisation. Even so, I give this consideration some weight in favour of cancellation.
Degree of hardship that may be caused to the visa holder and any family members (financial, psychological, emotional or other hardship)
I am satisfied that he suffers from depression and anxiety. The applicant has been diagnosed with several mental health conditions and was hospitalised for psychiatric care in both China and Australia. There is supporting medical evidence that cancellation of the visa would adversely impact his mental health recovery and increase the risk of harm.
I accept that the cancellation would likely result in significant psychological hardship. The consequences of removal, including the loss of stability and treatment support, weigh heavily against cancellation.
I accept that the applicant will experience hardship if his visa was cancelled. In view of the applicant’s psychological history, I accept that the cancellation of his visa will likely reinforce what has previously been described as feelings of inadequacy or of being a burden on his family.
The circumstances in which ground of cancellation arose. If cancellation is being considered because of relationship breakdown, whether the relationship has broken down as a result of family violence.
As a general rule, a visa should not be cancelled where the circumstances in which the ground for cancellation arose were beyond the visa holder’s control. As the applicant submits, ‘the basis for the visa cancellation was the Applicant’s non-enrolment in a course of study for a period of approximately 15 months’.[12] Yet, the applicant argues that the period of non-compliance was directly attributable to serious medical issues that required an extended leave of absence.[13]
[12] Subs at [24].
[13]
The applicant has provided credible and documented evidence that his non-compliance resulted from serious health issues. This included inpatient psychiatric treatment, ongoing outpatient care, and significant disruptions caused by mental illness.
I am satisfied on the material before me that the applicant attempted to re-enrol following his return to Australia, and while there were delays due to technical issues and missed intakes, his conduct supports a consistent effort to re-engage with study, even if it might be fairly said that he could have been more proactive in this regard. I am prepared to accept that the circumstances that gave rise to the non-compliance were largely beyond the applicant’s control.
I am satisfied that this factor weighs against cancellation.
The past and present behaviour of the visa holder towards the Department
The applicant has no history of adverse conduct. He responded to the NOICC within the allowed period and has acted cooperatively throughout this process. I am satisfied that this factor weighs against cancellation.
Whether there are persons in Australia whose visas would, or may, be consequentially cancelled under s 140
There is no suggestion that there is any person whose visa would be affected by a cancellation of the applicant’s visa.
Overall and on balance, I consider this factor to be immaterial to the decision I must make, and it weights neither for, nor against, cancellation.
whether there are mandatory legal consequences to cancellation, such as: indefinite detention if the person cannot be removed consistently with Australia’s non-refoulement obligations; whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister personally intervening; and whether the person would become an unlawful non-citizen and liable to detention and removal
I accept that if the applicant’s visa is cancelled, he will become an unlawful non-citizen and would, in that context, be liable to be removed from Australia. I further accept that the cancellation of his visa will result in the applicant facing an exclusion period
The applicant has submitted that a further legal consequence is that the applicant will not be able to apply for a further student visa. Indeed, it is submitted that as the applicant’s student visa is to cease on 31 July 2025, a decision must be made before that date because otherwise the applicant would not be able to apply for a further student visa to continue his studies. I do not agree. I note that Item 1222 of the Migration Regulations provides for an application for a further student visa to be made within 28 days after the day when that last substantive visa ceased to be in effect; or of the applicant being notified that where their last substantive visa was cancelled, the ART has made a decision to set aside and substitute the cancellation decision.
Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation
The applicant submits that this factor is not applicable. There is nothing in the material before me that indicates that Australia has international obligations that would be breached as a result of the visa cancellation.
Any other relevant matters.
There are no other matters relevant to my consideration.
Overall assessment
In weighing the relevant factors, I would have given significant weight in favour of cancellation to the applicant’s prolonged non-compliance with condition 8202. However, I am satisfied that non-compliance arose in circumstances that were largely beyond the applicant control, including his experiencing serious mental health issues that involved hospitalisation on two occasions both in China and in Australia. I have given significant weight to the hardship the applicant would face if his visa were cancelled including the risks his mental health, as well as with genuine efforts to resume study and his re-engagement with the purpose of the visa. When considered together, I am satisfied that the factors against cancellation outweigh those in favour of cancellation. It would not be appropriate to cancel the Visa in the circumstances.
Having regard to the above matters and considering the whole of the circumstances and evidence, I find that the visa should not be cancelled.
For the avoidance of doubt, although I have decided not to cancel the applicant student visa, nothing in these reasons should be taken as indicating that the applicant will, or is likely to, satisfy the criteria for the grant of any further student visa. Any such application will be a matter for assessment by subsequent decision-maker, having regard to the applicable criteria and the related findings made by reference to the material before that decision-make the circumstances prevailing at the time of that decision.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
Date of hearing:
28 July 2025
Representative for the Applicant:
Ms Wan
Attachment - Extract from reg 2.43A to the Migration Regulations 1994 (Cth)
2.43AMinister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition
(1) This regulation applies in relation to a visa if:
(a)the visa is a temporary visa other than:
(i)a criminal justice visa; or
(ii)an enforcement visa; and
(b)the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition) to which the holder’s visa is subject; and
(c)regulation 2.43B does not apply in relation to the visa.
(2) For the purposes of paragraph 116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph 116(1)(b) of the Act:
(a)any written certificate issued by a certifying entity that is a government entity if the certificate:
(i)was issued in relation to the visa holder in respect of a workplace exploitation matter; and
(ii)sets out the matters agreed to by Immigration and the government entity;
(b)any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that:
(i)there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and
(ii)if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter—that time has not expired; and
(iii)there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected;
(c)whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(d)whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa;
(e)whether the visa holder has committed, in writing, to do both of the following:
(i)to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject;
(f)whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph (e) of this subregulation, or paragraph 2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa.
(3) Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
(a)paragraph 116(1)(b) of the Act for non compliance with a condition (other than the relevant condition) to which the visa holder’s visa is subject; or
(b)a provision other than paragraph 116(1)(b) of the Act.
Note:For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.
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