Khendo Sherpa (Migration) - [2024] AATA 3393

Khendo Sherpa (Migration) [2024] AATA 3393 (31 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Dawa Khendo Sherpa
REPRESENTATIVE:  Mr Hem Raj Bhatta (MARN: 1466471)
CASE NUMBER:  2311032
HOME AFFAIRS REFERENCE(S):          BCC2023/625326
MEMBER:Christine Kannis
DATE:31 August 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Class TU visa.

Statement made on 31 August 2024 at 12:45pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered full-time course – discretion to cancel visa – successfully completed diploma – advanced diploma course merged with diploma – could not enrol in bachelor course after failing to achieve proficient English score – death and illness in family and applicant’s mental health – husband’s visa refused – significant period of non-enrolment, and ongoing casual employment – no approach to department – new enrolment after receiving department’s notice of intention – currently studying but not enrolled because holding bridging visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 359AA
Migration Regulations 1994 (Cth), r 1.03, Schedule 8, condition 8202(2)(a)
Education Services for Overseas Students Act 2000 (Cth), s 19(3)
CASES
Liew v MIBP [2016] FCA 172
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
1607917 (Migration) [2017] AATA 950
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 July 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 19 August 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed OR set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Migration Regulations 1994 (Cth) (the Regulations). If the applicant has breached that condition, under s 116(1) of the Act, the visa may be cancelled.
Did the applicant comply with Condition 8202?
On 29 January 2021, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a full-time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 11 March 2021 to 8 June 2023.
Utilising the s 359AA of the Act procedure, the Tribunal put the following information to the applicant for her comment or response:
Prior to the hearing the Tribunal sent Excelsia College the following request:
The AAT has obtained PRISMS extracts of the student’s study history. The extract shows that the student was enrolled in a Bachelor of Early Child Education (Birth to 5) (CoE E5A44F90) which was cancelled when the student’s visa was cancelled.
Can you please confirm whether the student is still enrolled and undertaking this course?
On 14 August 2024. Excelsia College provided the following response:
I can confirm that Dawa KHENDO SHERPA (2343469807) is still undertaking the Bachelor of Early Child Education (Birth to 5) course at Excelsia College.

I can also confirm that the student no longer has an CoE in relation to her studies at Excelsia College, as she is the holder of a valid Bridging Visa (Subclass 050).
The Tribunal put to the applicant that the information provided by Excelsia College indicated that she was enrolled in a course however she had not been issued with a CoE and that this was consistent with the information recorded in PRISMS. The applicant agreed with this statement.
In a pre-hearing written submission a dated 14 August 2024 and in oral submissions during the hearing, the representative contended that the ground for cancellation did not exist as the applicant was enrolled in a course of study at the time of the delegate’s decision. The Tribunal referred the representative to Liu v MIMIA [2003] FCA 1170 however he submitted that there had been a change in the Regulations since that decision.
Section 116(1)(b) permits the cancellation of a visa if its holder has not complied with a condition of the visa. Condition 8202(2)(a) requires that the holder be enrolled and the enrolment requirement is a continuing requirement and does not allow the visa holder to cease to be enrolled in a course, even to the extent of a temporary gap in enrolment.[3] The current condition 8202 explicitly requires primary student visa holders to maintain enrolment in a registered course, making it clear that this is a continuing requirement. There has not been any case law or change in legislation that would indicate any change to the interpretation of cl 8202(2)(a).
[3] Liu v MIMIA [2003] FCA 1170 at [19]–[20]. Liu was followed by Rangiah J in Liew v MIBP [2016] FCA 172 at [40].
The Tribunal also had regard to the decision of the Tribunal (differently constituted) in 1607917 (Migration) [2017] AATA 950 in which it was said :
Relevantly, s 116(1)(b), being the ground for cancellation identified in this case, provides that the ground for cancellation is established if the decision maker is satisfied the visa holder has not complied with a condition of the visa. This implies that s 116(1)(b) contemplates the consideration of factual matters prior to and at the time of cancellation (at [38]).
Therefore, in considering whether the applicant has complied with cl 8202(2)(a), the Tribunal considers the factual matters prior to and at time of cancellation (and not only the factual matters at the time of cancellation).
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 11 March 2021 to 8 June 2023 and the Tribunal finds that she breached condition8202(2)(a) of her visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant and his representative, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
Utilising the s 359AA of the Act procedure, the Tribunal put the following information to the applicant for her comment or response:
On 6 June 2023, the Department of Home Affairs Character and Cancellation Branch sent the applicant an email regarding verification of her contact details and she responded on 6 June 2023.
The applicant agreed that she had been contacted on 6 June 2023 by the Department of Home Affairs Character and Cancellation Branch.
On 4 July 2023, the Department issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 11 March 2021 to 8 June 2023 and had therefore failed to comply with condition 8202(2)(a) of her visa.
On 10 July 2023, the applicant responded to the NOICC via her migration agent and provided the following information:
- The applicant went to Nepal on 22 October 2018 and was married on 24 October 2018.
- The applicant successfully completed a Diploma of Nursing.
- The applicant obtained a CoE for Advanced Diploma of Nursing for April 2019 intake however, the institution merged both programs together with Diploma of Nursing due to its internal issues of registration.
- The applicant obtained a conditional CoE for a Bachelor of Nursing with the course start date of February 2021 conditional on her obtaining the Proficient English score in IELTS. She failed multiple tests to satisfy the condition. Not achieving the required English score in PTE or IELTS was beyond her control, and she could not enrol in the Bachelor program.
- The applicant’s husband applied for a Subclass 500 as her dependent but his visa was refused on 21 January 2021 and this which fuelled her distress. The relationship was not going well because of the tension and COVID-19 lockdown and was on the verge of breaking down and as a result she could not make the right decision and left her academic journey in limbo.
- The applicant had a family tragedy when her grandmother died in February 2022. This pushed her to further darkness where she could not think properly.
- The applicant’s mother was diagnosed with severe nerve problems which require ongoing treatment and this added additional emotional stress. The applicant visited a general practitioner in Australia a few times for resolutions on her mental strain and is now on medication and under a stress management plan. She was recommended for psychotherapy In the meantime, COVID-19 made her life stop and loneliness and social distance led her to unhealthy habits which raised her level of stress, impeded sleep, and anxiety. The incidents one after another full of family tragedy and mental pressure left her mind tedious and could not make a right decision until end of May 2023 .
- The applicant finished a 4 week General English course on 2 July 2023 and is currently enrolled in a Bachelor of Early Childhood Education (Birth to 5). She chose a Bachelor of Early Childhood Education because she is passionate about serving her community. Initially, she wanted to serve in the health sector and since that dream could not be achieved, she decided on this course which is similar to initial dream.
- The applicant wanted to study a nursing degree in Australia and that was the reason she left her family and friends in Nepal. She planned to move to a higher level of a Bachelor of Nursing and therefore applied in early 2020 and obtained a conditional offer and CoE. However she could not achieve the required English test score. She became depressed due to breaking her academic career plan. She could not decide what is right and wrong and remained without being enrolled in any other registered course from 11 March 2021 to 5 June 2023. Before she obtained notification from the Department, she realized her mistake and went back to study, giving up her dream of being a registered nurse to become an Early Childhood Teacher.
- The applicant’s parents have spent a significant sum of money on her study and cannot afford to again spend money on her higher education in Nepal if she fails to complete her higher education in Australia. The mental and financial hardship for herself and her parents are inevitable if the visa is cancelled.
- The applicant came to Australia at 20 years old. It is not common for a girl of her age in Nepal to leave family and friends and start an independent international student life living far away. It is likely in these conditions for students like her to fall into pressure of maintaining family tragedy, part time work pressure, burden for scoring required English, relationship breakdown, abnormality due to effect of COVID 19, mother illness and everyday routine in a completely new place at such young age.
- Currently, the applicant is vulnerable to depression and anxiety and may not be able to cope with the legal consequences (such as handling of the MRT appeal and Federal Circuit court application) if her visa is cancelled.
- Despite having multiple hardships, the applicant contributed to Australian society through her employment in health and hospitality during the COVID.
- The applicant belongs to Nepal. Her parents have dedicated themselves to providing support in her study in Australia and it is matter of pride to them and the Nepali society to have her as a graduate in Higher Education from Australia.
- The applicant comes from a well-respected family. Her mother runs family and household chores and her father is a businessman running a lucrative garment business in India..
- Being an elderly daughter of her parents, the applicant has a responsibility of having to look after her parents in later stages of their life and she intends to return to her country once she finishes her studies in Australia.
- As Nepal is progressing in the field of early childhood and pre-school, the applicant will have a bright future when she returns after she completes her current study. There are reputable institutions where she can secure good employment as her Australian qualifications are highly valued in Nepal. With a few years of experience in the education and childcare sector of Nepal, she will have an option to do her higher education at Masters level either in Nepal or overseas to strengthen her skills and knowledge and that will be a great asset for a country itself like Nepal. It will have an adverse effect on her career if her visa is canceled and if she is deprived of an opportunity to complete her enrolled studies in Australia.
At the time of responding to the NOICC the applicant provided documents which included but were not limited to the following:
·CoE for Diploma of Nursing created on 29 August 2017;
·Diana School of Community Services letter dated 7 June 2023 stating that the applicant, a student with the Australia Institute of Business and Technology (AIBT) completed mandatory 120 hours of vocational placement as part of her course Diploma of Nursing at Nepean Hospital, Kingswood NSW from 3 June 2019 to 8th July 2019;
·PTE Academic Score Reports for applicant dated 26 November 2019, 28 March 2022 and 10 May 2022;
·Australian Institute of Business and Technology Diploma of Nursing certificate dated 10 February 2020 and Transcript of Academic Record for the applicant;
·Australian Catholic University letter dated 8 April 2020 described as offer letter proof of conditions of English requirements;
·CoE for Bachelor of Nursing created on 15 April 2020;
·Four pages described as Chat History between applicant and husband-proof of troubled relationship dated July and August 2021( not translated);
·Death Certificate for applicant’s grandmother showing date of death 09-02-2022;
·Evidence of GP consultation on 5 April 2022 and 30 September 2022;
·Documents dated in 2022 described a Mother’s medical reports
·Newton Dentists Employment reference letter dated 13 February 2023 stating that the applicant has been employed with Newtown Dentists since 14 March 2022 as a Dental Assistant/receptionist in a casual position with approximately 24 hours/week;
·CoE for General English course created on 9 June 2023;
·CoE for Bachelor of Early Childhood Education created on 9 June 2023;
·Super Agent Agency employment reference letter dated 5 July 2023 stating that the applicant had been employed as a staff member in their organization, Super Agent Agency Pty Ltd since 26 October 2021;
·Referral letter dated 5 July 2023 from Dr Siyu Liu to New Vision Psychology advising that the applicant is a new patient to Dr Liu and that Dr Liu has started her on mirtazapine for her mood and her sleep;
·Medical Certificate dated 5 July 2023 from Dr Siyu Liu stating the applicant has suffered severe anxiety and depression for 6 months and that her medical issues have had a significant adverse effect on her studies;
·Pacific English Institute General English certificate dated 7 July 2023 for the applicant;
·Five pages providing information with respect to anxiety and depression described as having been given to the applicant by her doctor; and
·Document described as husband’s visa refusal;
Evidence provided by the applicant prior to the hearing
Letter dated 11 August 2023 from Excelsia College Sydney advising the Bachelor of Early Childhood Education (Birth to 5 years) commenced on 24 July 2023 and is expected to end on 30 June 2027 and that there is a break period from 20 November 2023 to 4 March 2024.
Letter dated 23 July 2024 from Excelsia College Sydney with the subject line Proof of Enrolment stating it certifies the applicant is enrolled in a Bachelor of Early Education (Birth to 5 years) with a commencement date of 4 September 2023 an expected completion date of 30 June 2027 and setting out the units completed in 2023 and 2024. A Results Summary dated 16 July 2024 was also provided which showed the units completed in 2023 and 2024.
Representative’s written submission dated 1 August 2024 which included the following:
·The applicant has a CoE which is evident that she has obtained on 9 June 2023 and was enrolled at the time of cancellation decision. This evidence suggests she is enrolled in a full-time registered course at the time of decision.
·The CoE and an Enrolment Holiday Letter from the education provider indicate the applicant is compliant with the visa condition and has not breached the visa condition. Since there is compliance, the department could not proceed with the cancellation.
Representative’s written submission dated 14 August 2024 which submitted that the ground for cancellation did not exist as the applicant was enrolled in a course of study at the time of the delegate’s decision.
Evidence provided at hearing
The Tribunal adopted the procedure in s 359AA of the Act to put to the applicant information from a copy of his enrolment record from the PRISMS database, a copy of which is on the Tribunal file. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put to the applicant that according to the information from his PRISMS enrolment record, she was enrolled in the following courses of study:
a.She was enrolled in Diploma of Nursing courses which she finished on 29 March 2019 and on 4 October 2019;
b.She was enrolled in an Advanced Diploma of Nursing which was cancelled on 28 February 2019 due to Change to course in same sector, no gap, but longer study duration;
c.She was enrolled in an Advanced Diploma of Nursing which was cancelled on 27 March 2020 due to Student Notifies Cessation of Studies;
d.She was enrolled in Bachelor of Nursing course which was cancelled on 10 March 2020 due to Non-commencement of studies and 15 April 2020 due to Change to a course in the same sector, gap created at either start or end of course OR the study period of the new CoE is shorter than the original;
e.She was enrolled in a Diploma of Leadership and Management which she finished on 28 February 2021;
f.She was enrolled in Bachelor of Nursing course which was cancelled on 11 March 2021 due to Non-commencement of studies;
g.She was enrolled in a General English course which she finished on 2 July 2023; and
h.She was enrolled in a Bachelor of Early Child Education (Birth to 5) which was cancelled on 22 July 2023.

The Tribunal explained to the applicant that this information was relevant because it indicates that from 11 March 2021 to 8 June 2023 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the student visa, including in considering her purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comments in relation to her PRISMS enrolment records. In response the applicant said she agreed with the PRISMS records.
The Tribunal asked the applicant about the statement in the NOICC response that after she could not achieve the required English test score she became depressed due to breaking her academic career plan and could not decide what is right and wrong and remained without being enrolled in any other registered course from 11 March 2021 to 5 June 2023. In response the applicant said she tried a number of times to achieve the required English score and when she was unsuccessful she became depressed. She said this occurred during COVID and she was far away from her parents. She said due to her depression, she was not able to think straight at that time.
The Tribunal asked the applicant about the statement in the NOICC response that before she obtained notification from the Department, she realized her mistake and went back to study. The Tribunal noted that the CoEs for a General English course and a Bachelor of Early Child Education (Birth to 5) were created on 9 June 2023, after she had been contacted on 6 June 2023 by the Department. In response the applicant agreed that she obtained the CoEs in response to the contact on 6 June 2023.
The Tribunal asked the applicant about the statements in the NOICC response that her distress was fuelled when her husband’s visa was refused in January 2021, that the relationship is on the verge of breaking down due to the physical distance and as a result, she could not make the right decision and left her academic journey in limbo. In response, the applicant said a long distance relationship was difficult. She said when her husband was not able to join her in Australia she was unable to return to Nepal and this caused her to feel stressed. She said she was in limbo because se could not think straight, could not know what was right or wrong and could not focus on what she should do.
The Tribunal asked the applicant about the NOICC response regarding her grandmother’s death in February 2022. In response she said she was close to her grandmother and she was unable to return to Nepal to see her in her final days because her family did not tell her of the severity of her grandmother’s condition until it was too late.
The Tribunal asked the applicant about the NOICC response regarding her mother’s illness. In response the applicant said in 2022 her mother’s nerve problems worsened and surgery was considered. The applicant said she was not able to be with her mother because she did not have the financial means to return to Nepal. The Tribunal referred the applicant to the medical evidence provided in relation to her mother and asked her to identify where the nature and severity of her mother’s condition could be found. Despite a number of requests, including a request that this evidence be clarified post-hearing, the applicant and the representative did not provide this clarification of the evidence relied on.
The Tribunal asked the applicant about the NOICC response regarding her visit to a general practitioner in Australia a few times to get suggestions and resolutions on her mental strain, that she is on medication, is under the stress management plan and was recommended for psychotherapy. In response the applicant said she saw a general practitioner in 2023 because she could not sleep. She confirmed that this appointment was after she received the NOICC. The applicant said she was prescribed sleeping pills for 6 months and after that she longer required medication to sleep. She said the stress management plan included going into nature to calm herself down. The applicant said she did not use the psychologist referral because it was too expensive to engage in therapy.
The Tribunal referred the applicant to Super Agent Agency employment reference letter dated stating she had been employed as a staff member in their organization since 26 October 2021 and asked her whether this employment was continuing. In response she said she remains employed in this casual position. She said in 2022 she worked 2 or 3 days per week however she has not worked since March 2023.
The Tribunal referred the applicant to the Newton Dentists Employment reference letter stating that she had been employed with Newtown Dentists since 14 March 2022 as a Dental Assistant/receptionist in a casual position and asked her whether this employment was continuing. In response she said she worked in this job from 14 March 2022 to August 2023.
The Tribunal put to the applicant that she would have known from 11 March 2021 that she was no longer enrolled in a course and was not abiding by the conditions of her visa. In response, the applicant conceded that she was aware of her non-compliance. The Tribunal asked her whether she contacted the Department about her visa status. In response she said she did not contact the Department because she was not sure what they would tell her to do and whether she would be granted another visa.
Noting that the applicant was not engaged in study for most of 2021, none in 2022 and not until contact from the Department in 2023, the Tribunal asked the applicant how she spent her time during the period from 11 March 2021 to 8 June 2023 ( 2 years 3 months). In response she said she attempted to obtain the required English score three times and undertook research for courses.
Noting that she was able to obtain CoEs 3 days after she was contacted by the Department on 6 June 2023, the Tribunal asked the applicant the reason she did not or was unable to obtain a CoE prior to 9 June 2023. In response, the applicant said at that time she discussed her circumstances with a friends and they agreed she was not doing a good thing and she needed the assistance of a migration agent. She said prior to that time she did not have the confidence to ask for help however her friends boosted her up.
When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she came here to complete a Bachelor degree in nursing and return to Nepal to give back to the community. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said her parents have spent a fortune on her study in Australia and her Diploma of Nursing course is not credited in other study. She said if she returns to Nepal without a degree it will bring shame to her parents and they would have lost trust in her. She said they will be proud of her if she returns with a foreign degree.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said she will feel guilty if she returns to Nepal without a foreign degree and referred again to the money her parents have spent on her study.
The representative referred to his pre-hearing written submission in which he contended that the grounds for cancellation did not exist because at the date of the delegate’s decision, the applicant was enrolled in a registered course. For the reasons stated above, the Tribunal does not accept this argument.
The representative submitted that the Tribunal should consider what the applicant could achieve in the future if she completes the course she is currently studying.
The representative made submissions with respect the Australia Institute of Business and Technology's registration issues in 2019 with respect to nursing courses and said the applicant’s completion of a Diploma of Nursing was therefore of no real value and this was a big setback for her. The Tribunal stated that it was aware of these issues however the visa the subject of this review was granted on 29 January 2021 and the period of non-compliance was from 11 March 2021 to 8 June 2023. In addition, at the time the CoE was cancelled the applicant’s education provider was not the Australia Institute of Business and Technology.
The representative requested a further 14 days to make submissions regarding the applicant’s PRISMS enrolment record and the information provided to the Tribunal by Excelsia College on 14 August 2024 as set out in paragraph 13 hereof. The Tribunal advised the representative that the PRISMS enrolment record was current and that no clarification of the information provided to the Tribunal by Excelsia College was required. The Tribunal advised it would allow a further 7 days for submissions to be provided however the representative stated that if the Tribunal was satisfied with the information before it no further submissions would be made.
The Tribunal has considered the evidence against each of the matters in PAM3 as referred to above.
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
The purpose of the applicant’s visa was to enable her to study. The applicant was not enrolled in a course of study for a period of 2 years 3 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia. The Tribunal accepts that the applicant obtained CoEs created on 9 June 2023 however her evidence at hearing was that she obtained the CoEs after being contacted by the Department on 6 June 2024.
There is no specific definition of 'compelling' in either the Act or the Regulations. To be ‘compelling’, the reasons in question must force or drive the decision-maker irresistibly to some end.[4] The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, the applicant said her parents have spent a fortune on her study in Australia and her Diploma of Nursing course is not credited in other study. The Tribunal does not consider this constitutes a compelling need.
[4] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
The applicant’s non-engagement in the study for which her visa was granted, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study from 11 March 2021 to 8 June 2023. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.
The applicant’s non-compliance for the extended period of 2 years 3 months from cancellation of her enrolment until the issuing of the NOICC weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that the cancellation will be disappointing to her and her family.
The Tribunal gives the hardship that may be caused to the applicant and her family some weight against cancellation.
Circumstances in which ground of cancellation arose; whether the circumstances were beyond the visa holder’s control
The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for 2 years 3 months prior to the issuing of the NOICC. In her response to the NOICC and her oral evidence at the hearing, the applicant provided several reasons for not maintaining enrolment including her relationship with her husband and the refusal of his student visa, COVID-19, her grandmother’s death, her mother’s illness, her own mental health and her unsuccessful attempts to obtain the required English score.
In relation to the applicant’s claimed difficulty of a long distance relationship with her husband and the refusal of his student visa, the Tribunal accepts that a long distance relationship can be problematic and that the refusal of a visa is disappointing however does not consider these matters preclude enrolment in a registered course.
Regarding the death of the applicant’s grandmother in 2022 and her mother’s claimed illness in 2022, the Tribunal accepts that these matters may have caused emotional distress to the applicant however does not consider these matters preclude enrolment in a registered course.
In relation to her own mental health, the applicant’s oral evidence was that she attended her general practitioner in 2023 after she received the NOICC because she was having sleep difficulties. The Tribunal notes that invoices for medical two consultations in 2022 were provided however this evidence did not indicate the purpose of the consultations and the applicant’s response during the hearing was that she visited her general practitioner for her ‘mental strains’ in 2023. The medical evidence provided included a medical certificate dated 5 July 2023 which stated that the applicant had suffered severe anxiety and depression for 6 months however this appears to be based on the applicant’s self-report and the Tribunal notes that the referral letter dated 5 July 2023 says the applicant is a new patient. Accordingly, the Tribunal places limited weight on this evidence as evidence of her mental health issues in 2023 and notes that it does not include certification of the applicant’s mental health in 2021 and 2022.
The evidence before the Tribunal is that the applicant maintained employment during the time she ceased to be enrolled in a registered course including that she worked 2 to 3 days in 2022 in at least one of her positions. Therefore, despite the claimed mental health issues caused by various family issues and COVID-19, the applicant was able to maintain employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder. In addition, the Tribunal notes that despite the claimed family and mental health issues, the applicant was able to obtain new CoEs three days after she was contacted by the Department on 6 June 2023.
The representative made submissions regarding the applicant’s former education provider, the Australia Institute of Business and Technology and the ‘big setback’ caused to the applicant as a result of the education provider’s registration issues. As noted, this review relates to the applicant’s visa granted on 29 January 2021 and the CoE cancelled on 11 March 2023 was for a Bachelor of Nursing course which was being undertaken at the Australian Catholic University Limited. The Tribunal notes that the delegate also referred to the applicant’s CoE for a Bachelor of Nursing at Australian Catholic University in Sydney commencing in February 2021 conditional on her obtaining the proficient IELTS scores.
The Tribunal accepts that the registration issues of the Australia Institute of Business and Technology and the merging of programs due to these issues may have contributed to the applicant’s distress however as noted, the Tribunal does not consider the applicant’s mental health precluded her from maintaining enrolment in during the period 11 March 2021 to 8 June 2023 during which time she continued to be employed.
The Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 11 March 2021 to 8 June 2023. She referred to several reasons for not maintaining enrolment including not being able to think straight, however as noted, she was able to maintain employment during the period of non-compliance and was able to obtain CoEs three days after she was contacted by the Department. The Tribunal finds that the applicant knowingly remained in breach of her visa conditions and did not contact the Department about her visa status. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
There is nothing to suggest and the applicant does not claim that Australia’s international obligations would be breached as a result of the cancellation and the Tribunal gives this factor no weight in its considerations.
Any other relevant matters
The representative submitted that applicant ‘s future achievements if she completes the course she is currently studying should be considered. The Tribunal accepts that completion of the course may assist the applicant in future employment and gives this some weight against cancellation.
The representative submitted that the Australia Institute of Business and Technology's registration problems are relevant to the review. Whilst the Tribunal accepts that these issues may have caused the applicant distress including regarding that her diploma course undertaken with the education provider may count for nothing with other providers, for the reasons stated above the Tribunal places minimal weight on this matter.
Although not raised during the hearing, the applicant’s NOICC response said she was 20 years old when she came to Australia and it is not common for a girl of her age in Nepal to leave family and friends and start an independent international student life. The Tribunal notes that at the date her CoE was cancelled on 11 March 2021, she was nearly 24 years old. Further, in the Tribunal’s view, if the applicant was old enough to marry, travel to and live in a foreign country and undertake study, she would have sufficient life experience to ensure compliance with her visa conditions .
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.

The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Class TU visa.
Christine Kannis
Member

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