Kaur (Migration) - [2025] ARTA 2239

Kaur (Migration) [2025] ARTA 2239 (23 September 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Harman Kaur
Mr Virender Singh
Miss Gursifat Kaur
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2510899

Tribunal:Clyde Cosentino
Place:Brisbane
Date: 23 September 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.
The Tribunal has no jurisdiction with respect to the other applicants.

Statement made on 23 September 2025 at 2:53pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine student – breached visa conditions – postnatal complications – evidence in support of submissions – change to study path – satisfied her parents’ dream, now satisfying her dream – financially supported by family – course relevant to future plans – value of Australian courses – short period of non-enrolment – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 140, 348
Migration Regulations 1994 (Cth), rr 2.12, 2.43A; Schedule 4, Public Interest Criteria; Schedule 8, Condition 8202
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 7 March 2025 made by a delegate of the Minister to cancel the first named applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the first named applicant did not comply with condition 8202(2)(a) which requires the visa holder (the first named applicant) to be enrolled in a full-time registered course. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s 348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant (the applicant). The other visas were automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s 140(1) of the Act. As no decision was involved in the visa cancellation under s 140(1), the Tribunal has no jurisdiction with respect to the other applicants.
The applicants lodged an application for review of the delegate’s decision with the Tribunal on 12 March 2025.
The applicants appeared before the Tribunal on 20 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
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
Under s 116(1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that a visa holder has not complied with a condition of the visa. However, the Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
There are currently no prescribed circumstances under s 116(2) requiring the visa not be cancelled, or under s 116(3) requiring the visa to be cancelled, that apply.
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 the Regulations. If satisfied the applicant has breached condition 8202, the decision maker must proceed to consider whether the visa should be cancelled under s 116(1)(b). In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and reg 2.43A, and other matters of government policy.
Did the applicant comply with Condition 8202?
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The applicant was notified of the intention to consider cancellation (NOICC) of her visa on 3 July 2024. 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 5 January 2024. The applicant responded to the NOICC and provided a letter of offer dated 4 July 2024 from her education provider for full-time study in a Diploma of Nursing, commencing on 29 July 2024 and finishing on 26 January 2026. The PRISMS[1] record confirms her enrolment in this course. The PRISMS record also shows that she was enrolled in a Diploma of Nursing, studies to commence on 27 February 2024 but that this course was cancelled on 5 January 2024 for reasons of “non-commencement of studies”. She provided reasons as to why she had not been enrolled in the response to the NOICC which are considered below.
[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 delegate in their decision found the applicant had not been enrolled in a full-time registered course of study from 5 January 2024 to 8 July 2024. Consequently, the applicant’s visa was cancelled.
The applicant did not dispute in oral evidence at the hearing that she was not enrolled in a course of study from 19 March 2024 until 8 July 2024 but disputed that she was not enrolled from 5 January 2024 to 18 March 2024. Prior to the hearing, the applicant provided a Confirmation of Completion letter from Southern Cross Education Institute dated 18 March 2024 confirming that she had completed a Certificate III in Pathology Collection on 18 March 2024. The applicant confirmed again at the hearing that she was enrolled in a full-time registered course until 19 March 2024, where she completed a Certificate III in Pathology Collection on 18 March 2024. The applicant did not dispute that she had not been enrolled in a full-time registered course of study from 19 March 2024 to 8 July 2024. The applicant did not dispute that she had not complied with condition 8202(2) of her visa for the period between 19 March 2024 and 8 July 2024. The requirement is for the applicant to meet the conditions of the Student visa following its grant, namely to be enrolled in a full-time registered course.
On the evidence before it, the Tribunal finds that the applicant was enrolled in a full-time registered course until 18 March 2024 but was not enrolled, and did not have a Confirmation of Enrolment (CoE), in a full-time registered course of study from 19 March 2024 to 8 July 2024 while the holder of a Subclass 500 Student visa. Failing to maintain enrolment for this period (from 19 March 2024 to 8 July 2024) means that the applicant has not complied with condition 8202(2).
Accordingly, the Tribunal finds the 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 discretion
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the power to cancel the visa should be exercised.
Background
The applicant is a married 31-year-old female citizen of India. She has a 17-month-old baby to her husband.
The applicant first arrived in Australia on a Subclass 573 (Higher Education Sector visa) on 1 April 2016, granted on 22 March 2016 and valid to 15 March 2018. The applicant subsequently made a valid application for a Subclass 500 (Student visa) which was granted on 21 March 2018. The applicant subsequently applied for, and was granted, further Subclass 500 (Student) visas, the last one being granted 10 May 2023 and cancelled 7 March 2025. According to her Immigration Movement Records, the applicant has entered and exited Australia on a number of different occasions on a Subclass 500 Student visa.
According to PRISMS, while studying onshore, the applicant studied an English Language Bridging course on 26 April 2016 and completed this course on 1 July 2016. She was enrolled in a Master of Professional Accounting course commencing on 18 July 2016 but ceased this enrolment on 14 March 2017. She enrolled in a Master of Professional Accounting commencing on 13 March 2017 and finished this course on 31 December 2017. She enrolled in a Master of Business Administration, commencing on 12 March 2018 and finished this course 31 July 2018. She enrolled in a Master of Business Administration, commencing 1 August 2018 and finished this course on 31 December 2018. While her PRISMS record indicates that she was enrolled in a Certificate III in Pathology Collection, commencing her studies on 10 April 2023 and finishing her course on 20 November 2023, her Confirmation of Completion letter from her education provider indicates that she was a full-time student in Certificate III in Pathology Collection, commencing 10 April 2023 and finishing course requirements on 18 March 2024.
According to the Department decision, the following is a summary of the applicant’s submission provided in her response to the NOICC:
·The applicant stated that she was pursuing her dream of becoming a nurse in Australia and had completed a Certificate III in Pathology in March 2024, rather than the initial completion date of November 2023, after her course placement was extended.
·The applicant stated that she intended to complete a Diploma of Nursing at Southern Cross Education Institute, noting that she was under the impression that her CoE would be extended to the July 2024 intake as a result of the late finish of her Certificate III in Pathology.
·The applicant stated that she had pregnancy related complications, requiring a caesarean section to be performed on 27 April 2024. She added that she was required to rest for six weeks to recover after the procedure.
·The applicant stated that she contacted her education provider upon partial recovery, to send her a CoE for the Diploma of Nursing but she was advised that a PTE exam was required to secure an enrolment for the Diploma of Nursing course.
·The applicant stated that she took the necessary steps to book the PTE test for the 27 June 2024 but after submitting her results to the education provider, the Business Development Manager advised her that the July intake was full.
·The applicant stated that she immediately reached out to Bajwa Immigration Consultants SA and to assist them with acquiring a new CoE with another education provider, but at the same time, was in contact with SCEI to rectify her enrolment status as she was worried of breaching her visa conditions.
·The applicant stated that she did not receive support from her education provider and this was added immense stress to her mental and physical wellbeing, after the birth of her baby. She added that she had to divert her focus from caring for her newborn baby, to rectify the negligence of her education provider, who failed to inform her about her CoE cancellation.
·The applicant stated that a cancellation of her visa would not only impact her career plans, but also the welfare of her child and husband. She expressed her concerns about her child’s and husband’s ability to access the healthcare and education facilities, if her visa was cancelled.
·The applicant also stated that her parents would be disappointed in her as they have invested a considerable amount of time and finances in her education and added that a cancellation of her visa would cause financial strain on her family.
The applicant provided a number of documents in support of her submissions.
After applying for review, the applicant provided evidence that she was enrolled in a full-time registered course until 18 March 2024. She also provided the following supporting documents:
a.CoE – Enrolment in a Diploma of Nursing on 9 July 2024, course commencing 22 July 2024 and finishing 9 March 2026.
b.CoE – Enrolment in a Diploma of Nursing on 29 March 2023, course commencing 27 February 2024 and finishing 14 October 2025.
c.Letter of Offer dated 4 July 2024 for a Diploma of Nursing course to commence 29 July 2024 and finishing 26 January 2026.
d.Discharge receipts from Northern Adelaide Local Health Network for Obstetrics services for 8 November 2023, 27 December 2023, 23 March 2023, 5 April 2024, 16 April 2024, 20 April 202419 April 2024 and 23 April 2024.
e.Orientation invitation from SCEI Adelaide Welfare for compulsory attendance for the applicant on 15 July 2024 to 16 July 2024, prior to commencement of her Diploma of Nursing Course.
f.Letter of support from Premium Care Medical practice certifying that the applicant had suffered at least 8 weeks postnatal complications after the birth of her baby. The doctor reports that her condition is consistent with her unable to carry on her course studies during her postnatal complications.
She submitted that she was under the mistaken belief from her education provider that she would be enrolled initially in the July 2024 nursing intake, which she initially was not. When she argued to her education provider that she had been assured that she would be enrolled in the July 2024 intake, her education provider advised her that after completing the appropriate PTE score, she would be enrolled in the July 2024 nursing intake. The applicant completed this PTE in good faith and was subsequently re-enrolled in the Diploma of Nursing (confirmed by her CoE) on 9 July 2025 for commencement on 22 July 2025. The applicant provided a Letter of Offer in a Diploma of Nursing course and an email for her to attend at a compulsory two-day orientation confirming that she had been approved for full-time study for a Diploma of Nursing to commence on 29 July 2024. The applicant subsequently received the NOICC on 8 July 2024 regarding her non-enrolment in a full-time registered course at the time.
She also submitted that she had post-natal complications after the birth of her child on 27 April 2024. She made submissions that she was incapacitated for eight weeks as a result of birth complications. She provided medical evidence in support of these submissions.
At the hearing the Tribunal discussed with the applicant her enrolment and study history, reasons that led to her non-enrolment between 19 March 2024 to 8 July 2024, why she was not enrolled in the relevant period and the discretionary criteria. It asked her whether there were any other relevant matters the Tribunal should consider or whether she had anything to add. It raised a number of concerns. Where relevant her evidence and the responses to the concerns raised are considered below.
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. The prescribed matters are set out in the attachment to this decision.
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 19 March 2024 to 8 July 2024, a period of fifteen weeks and six days, while the holder of a Student visa.
The applicant agrees that she was not studying during this period. The Tribunal accepts her evidence that she intended to complete a Diploma of Nursing at Southern Cross Education Institute, noting that she was under the impression that her CoE would be extended to the July 2024 intake as a result of the late finish of her Certificate III in Pathology. The Tribunal accepts on the evidence before it that she completed the required PTE score in order for her to commence her Diploma of Nursing in the July 2024 intake. The Tribunal accepts on the evidence before it that the applicant had postnatal complications after the birth of her child in April 2024 and that this incapacitated her to study for at least eight weeks after the birth of her child and that she was in slow recovery after that. While these extenuating circumstances will be considered later in this decision, the Tribunal is of the view that in the period of non-enrolment between 19 March 2024 and 8 July 2024 the applicant’s purpose was not to study during this period. The requirement to maintain enrolment in a course of study in condition 8202(2) goes to this core purpose of the visa. It applies from the grant of the visa. The Tribunal places a small amount of weight on the duration of the applicant’s non-compliance with this condition.

The Tribunal gives this factor low weight in favour of exercising its discretion to cancel the visa.
The applicant’s written evidence provided prior to hearing, and her oral evidence given at the hearing, strongly indicate that she wants to continue to study her Diploma of Nursing that she had been enrolled in. Specifically, the evidence indicates that, while in Australia, she has studied and completed an English Language Bridging course on 1 July 2016; studied and completed a Master of Professional Accounting course on 31 December 2017; studied and completed a Master of Business Administration course on 31 July 2018; studied and completed a Master of Business Administration on 31 December 2018; and studied and completed a Certificate III in Pathology Collection on 18 March 2024. At the hearing the applicant was able to describe why she wants to study the Diploma of Nursing and its value to her future back in India. The Tribunal accepts that the applicant was enrolled at the time she received her NOICC and that she had continued to be enrolled, studied and finished various courses leading up to her Diploma of Nursing. It accepts that the applicant is genuinely seeking to comply with the purpose of the visa but for the NOICC in July 2024 and the cancellation of her visa in March 2025.
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 a Subclass 573 (Higher Education Sector visa) on 1 April 2016, granted on 22 March 2016 and valid to 15 March 2018. Since her travel to and stay in Australia she has been enrolled, studying and achieving course progression. She has successfully completed a Master of Professional Accounting, studied from 13 March 2017 to 31 December 2017, a Master of Business Administration, studied from 12 March 2018 to 31 July 2018, a Master of Business Administration, studied from 1 August 2018 to 31 December 2018, and a Certificate III in Pathology Collection, studied from 10 April 2023 to 18 March 2024. When asked at the hearing as to why she is had studied these courses and the value to her future she stated that, while she completed her Master studies, they were completed at the time to satisfy her parents’ dream of her obtaining an accounting profession. She still wished to be a good student and to complete her studies which she did. However, she has always wanted a career in the health profession and there is a great need for health care and health professionals back in India. She stated that the need for health care professionals is greatly needed in her community, and this is where she wants to make a difference. This was the motivation for her to study Nursing. This is why she did everything to make herself available for enrolment in a Diploma of Nursing.
The Tribunal gives this significant weight against cancelling the visa.
As to whether there was a compelling need for her to stay in Australia, she referred to her wishing to finish the course and returning to her community as a nurse and working in the healthcare profession. It is her great desire to give back to her community and to make a difference there as a nurse. The Tribunal accepts there is a compelling need for her to stay and finish the current course.
The Tribunal considers that this factor weighs against cancelling the visa.
The extent of compliance with visa conditions
The evidence indicates that the applicant’s last enrolment was cancelled for non-commencement of studies. This is understandable given that she received a NOICC and then a subsequent Cancellation Notice from the Department relating to her Student visa. The applicant has provided evidence that she obtained the pre-requisite PTE score to enable her to successfully enrol in a Diploma of Nursing in July 2024. She has done everything in her power to obtain an offer and acceptance in a Diploma of Nursing. The Tribunal accepts her evidence of the difficulties the applicant faced in maintaining enrolment between April and July 2024 due to her post-natal complications.
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 little weight in favour of exercising its discretion to cancel the visa.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant indicated in evidence at the hearing that she, her husband and her baby would suffer significant hardship if her visa was cancelled, and she was made to return to India before completing her Diploma of Nursing. The applicant indicated that she has spent a lot on education fees and that this will all be for nought if she is not able to complete her Diploma of Nursing, a course which she did everything possible to enrol in and to meet the course requirements beforehand. The Tribunal has considered the applicant’s response here in light of the difficult circumstances faced by the applicant between April and July 2024 where she suffered complications after the birth of her child and evidenced by a medical report which the Tribunal gives weight to.
The Tribunal therefore gives this 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 full-time course of study between 19 March 2024 and 8 July 2024. The Tribunal accepts the applicant’s evidence, as supported by medical evidence, that the ground for cancellation arose because of her post-natal complications and the extreme difficulty that this had on her being able to move about and to maintain study during this period of time. It accepts the applicant’s evidence that she recuperated until she could re-enrol in a Diploma of Nursing which was 9 July 2024 and continue as a student so she could fulfill the requirements of Condition 8202.
Having considered these reasons, combined with the relatively short period that she was not enrolled (15 weeks and six days) while recuperating, the Tribunal gives this weight against cancelling 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 is married with a 17-month-old child. Given that her husband visa and child’s visa are dependent on the applicant’s visa remaining valid, the Tribunal finds that there will be consequential cancellations to her husband’s visa and her child’s visa respectively if the applicant’s visa were cancelled.
The Tribunal gives this factor low weight against cancelling the visa.
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 for the applicant, her husband and her child, 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 India. If the applicant remained in Australia without a valid visa, she would be residing unlawfully and liable to detention and removal, along with her husband and child whose visas are consequential on the applicant’s visa remaining valid. 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.
The Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa were cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. At hearing the applicant said she did not fear return and had no refugee type concerns returning to India.
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 is satisfied that there are limited aspects that weigh in favour of exercising its discretion to cancel the visa. It has placed significant weight on the evidence and supporting medical report provided which supports why it was difficult for the applicant to maintain enrolment for 15 weeks and six days during the prescribed period of non-enrolment, along with the other reasons for not being enrolled.
The Tribunal acknowledges that the breach of condition 8202(2)(a) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia.
However considering all the factors, the applicant’s evidence and all 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 first named applicant’s Subclass 500 (Student) visa. The Tribunal has no jurisdiction with respect to the other applicants.
Date of hearing:  20 August 2025
Representative for the Applicant:           Ms Loveneet Kaur (MARN: 2518955)
ATTACHMENT – Extract from Schedule 8 to the Migration Regulations 1994 (Cth)
…
Schedule 8
8202(1)      The holder must be enrolled in a full time course of study or training if the holder is:
(a)     a Defence student; or
(b)     a Foreign Affairs student; or
(c)      a secondary exchange student.
(2)A holder not covered by subclause (1):
(a)     must be enrolled in a full time registered course; and
(b)     subject to subclause (3), must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relation to which the visa was granted; and
(c)      must ensure that neither of the following subparagraphs applies in respect of a registered course undertaken by the holder:
(i)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course progress for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act;
(ii)the education provider has certified the holder, for a registered course undertaken by the holder, as not achieving satisfactory course attendance for section 19 of the Education Services for Overseas Students Act 2000 and the relevant standard of the national code made by the Education Minister under section 33 of that Act.
(3)A holder is taken to satisfy the requirement set out in paragraph (2)(b) if the holder:
(a)     is enrolled in a course at the Australian Qualifications Framework level 10; and
(b)     changes their enrolment to a course at the Australian Qualifications Framework level 9.
ATTACHMENT – Extract from reg 2.43A to the Migration Regulations 1994 (Cth)
2.43AMinister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition
(1)This regulation applies in relation to a visa if:
(a)     the visa is a temporary visa other than:
(i)a criminal justice visa; or
(ii)an enforcement visa; and
(b)     the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition) to which the holder’s visa is subject; and
(c)      regulation 2.43B does not apply in relation to the visa.
(2)For the purposes of paragraph 116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph 116(1)(b) of the Act:
(a)     any written certificate issued by a certifying entity that is a government entity if the certificate:
(i)was issued in relation to the visa holder in respect of a workplace exploitation matter; and
(ii)sets out the matters agreed to by Immigration and the government entity;
(b)     any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that:
(i)there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and
(ii)if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter—that time has not expired; and
(iii)there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected;
(c)      whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(d)     whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa;
(e)      whether the visa holder has committed, in writing, to do both of the following:
(i)to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject;
(f)      whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph (e) of this subregulation, or paragraph 2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa.
(3)Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
(a)     paragraph 116(1)(b) of the Act for non compliance with a condition (other than the relevant condition) to which the visa holder’s visa is subject; or
(b)     a provision other than paragraph 116(1)(b) of the Act.
Note:For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.