Kulathunga Arachchige (Migration) - [2025] ARTA 145

KULATHUNGA ARACHCHIGE (MIGRATION) [2025] ARTA 145 (3 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Pulasthi Induka Punarjeewa Kulathunga Arachchige
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316996

Tribunal:David Thompson
Place:Perth
Date: 3 February 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 03 February 2025 at 4:46pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – satisfactory course progress until unable to pay course fees and enrolment cancelled – supporting mother, recently separated from father – attempts to re-enrol after receiving department’s notice of intention, before enrolling in different subject area – mandatory legal consequences – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), (1A), 359A
Migration Regulation 1994 (Cth), r 2.43A, Schedule 2, cl 8202(a)
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 October 2023 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under s 116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had not complied with condition 8202 on his TU 500 student visa, in that whilst holding that visa he had not been enrolled in a full-time registered course of study. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 19 September 2024 to give evidence and present arguments.
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 to 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.
Evidence
As well as giving oral evidence at hearing, the applicant has provided the Tribunal with a number of items of documentary evidence, relevant either to the issue of whether the applicant breached condition 8202, or the issue of (assuming he had breached that condition) whether his visa should be cancelled, or to both issues. That documentary evidence is:
a.the delegate’s decision record and notification letter, both dated 20 October 2023;
b.a receipt issued by Deakin University and dated 5 October 2023;
c.a copy of the applicant’s response to the Department’s Notice of Intention to Consider Cancellation (NOICC), undated;
d.a Deakin University 2020 sample re-enrolment course map, prepared with respect to the applicant’s studies, marked as last updated on 26 September 2023;
e.a payslip issued to the applicant by McDonalds Geelong Bypass Road Northbound, dated 10 October 2023;
f.a Deakin University application summary, dated 8 October 2023;
g.a personal statement prepared by the applicant, undated;
h.a series of Wise transfer confirmations bearing various dates between 26 August 2021 and 31 July 2024;
i.a series of payslips issued by the Grovedale Hotel to the applicant, covering the periods 8 December 2021 to 28 December 2021, 16 February 2022 to 1 March 2022, 9 March 2022 to 15 March 2022, and 20 April 2022 to 26 April 2022; and
j.an affidavit made on 4 September 2024 by the applicant’s mother, Mrs Ovitigalage Yamuna Wasanthi.
Where, in the course of these reasons, the Tribunal refers to any of the documents listed above, it does so by reference to the sub-paragraph number against which the relevant document is listed. Thus, the document listed in paragraph 8(a) above is referred to simply as ‘document (a)’, as so on for the other documents listed.
Prior to constitution of this case, the Tribunal obtained the Department’s file on the cancellation of the applicant’s visa. That file contains no relevant documents provided by the applicant and not already listed above.
The Tribunal has also obtained a copy of the applicant’s record from the Provider Registration and International Student Management System (PRISMS). Relevant information from that record is recorded in the delegate’s decision record. To the extent that the Tribunal has relied on other information contained in that record, none of that additional information contains or amounts to a reason or part of a reason for affirming the delegate’s decision. For that reason, the Tribunal has not put that additional information to the applicant pursuant to s 359A of the Act.
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. More specifically, and as stated in the delegate’s decision record, it was cancelled on the basis that the applicant’s PRISMS record showed ceased to be enrolled in a full time registered course from 6 December 2022. The decision record also states that this was put to the applicant in the NOICC, and that the applicant agreed it was the case.
At hearing, the applicant was asked if it was true that he ceased enrolment in a full time course of study on 6 December 2022. He replied that it was. The Tribunal also asked him whether he had been enrolled since that date. His response was that he had not. He added that since his visa was cancelled, he has resided in Australia on a Bridging Visa E which carries no study rights, and that on 28 August 2024 he sought enrolment at an institution (which he described as a university) known as Academia21. The Tribunal, having conducted its own internet searches, notes the existence of such a course provider. It also notes that the name ‘Academia21’ is a trading name of Australian Academy of Vocational Education and Trades Pty Ltd. It is not clear on the evidence before it which course offered by that institution the applicant sought to undertake. His evidence was, however, that Academia21 would not enrol him until he had a right to study in Australia, although its officers had stated that they would enrol him if he could such rights.
There is no evidence before the Tribunal to suggest that the applicant is wrong, and that he has in fact been enrolled in a full time course at any time after 6 December 2022.
On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course from 6 December 2022 onwards. Accordingly, the applicant has not complied with condition 8202(2)(a).
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. 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.
All but one of those prescribed matters are predicated on the issue of a written certificate regarding a workplace exploitation matter affecting the applicant. There is no evidence that any such certificate has issued in this case. The remaining prescribed matter requires the Tribunal to consider “whether there is evidence that the [applicant] was not complying, or is no longer seeking to comply, with the purpose of the visa.
The purpose of the visa in question is self-evident: it was to allow the applicant to study in Australia. The evidence before the Tribunal is that immediately before he fell into breach of condition 8202, he had been enrolled in a Bachelor of Mechatronics Engineering (Honours) at Deakin University. The applicant stated that his enrolment had been cancelled because he was unable to pay course fees, but that up until that point he had been studying and had completed all but the final year of his course. The Tribunal accepts this evidence and finds that up until that point, the applicant had been complying with the purpose of the visa.
The applicant gave evidence of attempts to recommence studying since his enrolment with Deakin University was cancelled. The first was an attempt to re-enrol in his course at Deakin University. He made that application on 8 October 2023 (see document (f)). By that date, as is clear from document (a), the Department had issued the NOICC and the applicant had received it. The applicant therefore sought re-entry to his Mechatronic Engineering course in the knowledge that his visa was at risk of cancellation. The applicant also gave evidence of a later attempt, on 28 August 2024, to enrol in studies. The circumstances of that attempt are set out in paragraph 14 above. By 28 August 2024, the applicant had been informed of the hearing date for this review application.
In these circumstances, it would be open to the Tribunal to infer that the applicant’s attempts to re-enrol were no more than attempts to remain in Australia, and were not motivated by an intention to study. However, for reasons arising from the applicant’s evidence of the circumstances in which his enrolment was cancelled, to which the Tribunal will return below, the Tribunal declines to make that inference on the basis of his first attempt to re-enrol. As regards the second attempt, document (g) indicates that the applicant was seeking enrolment in a package of hospitality courses. His evidence at hearing was to the effect that he was doing so in circumstances where he had accepted that he was not going to be able to afford to finish his Bachelor’s degree and following several years of practical experience as a chef in part-time work with the Grovedale Hotel (see document (i)). The Tribunal accepts the applicant’s evidence on these points and finds that, despite the timing of his second attempt to enrol, it was a genuine attempt, made with the purpose of studying rather than from any other motive.
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.
One of those matters is the extent of the applicant’s compliance with visa conditions. The applicant was in breach of condition 8202 from 6 December 2022 to 20 October 2023, a period of approximately 10 ½ months. That is a substantial period of breach. However, there is no other evidence before the Tribunal to suggest that the applicant had ever previously breached condition 8202, or any other condition that was placed on either the cancelled visa or the TU-500 student visa the applicant held previously to the cancelled visa, granted on 10 June 2019.
The applicant gave evidence at hearing as to the reasons for which he fell into breach of condition 8202. That evidence was, in summary, that during the final year of the applicant’s Bachelor of Mechatronic Engineering course, his parents’ marriage broke down, in circumstances involving verbal and physical violence. His father left his mother and refused to provide her with any funds upon which to live, or to provide any further funding to the applicant. Although the applicant had been working, he had been relying on his father for course fees. His mother’s health is bad, and she is unable to support herself financially. Her sole means of support has been the funds the applicant has been able to remit from his wages for working in Australia. In these circumstances, the applicant was unable to pay course fees, which resulted in Deakin University cancelling his enrolment. He was unable to pay those fees from his own income because he had to use his income to support both himself and his mother. The applicant’s mother has provided evidence broadly corroborating this: document (j). The Tribunal accepts the applicant’s evidence in this regard.
The circumstances surrounding the cancellation of the applicant’s enrolment, and preventing him from taking up his studies elsewhere, were not of his own making. He has been a victim of the domestic violence visited on his mother, albeit somewhat indirectly. These circumstances account for the extent of the applicant’s breach. They also provide a strong reason to set aside the delegate’s decision.
At hearing, the applicant asserted that he and his mother would suffer hardship if his visa remained cancelled and he was forced to return to Sri Lanka, because without qualifications he would have no job prospects in that country and so would have great difficulty supporting his mother. He would also be unable to remit funds from his Australian income for her support. The Tribunal is prepared to find that cancellation of the applicant’s visa would, along with the consequences that would naturally follow on it, cause the applicant and his mother some hardship. Of course, the purpose of a student visa is to allow the visa holder to study, not to work to support his or her family. The applicant stated at hearing that he could make sufficient funds to support himself and his mother, and to pay fees for the hospitality courses he now wishes to undertake, even working the hours to which he would be restricted as the holder of a student visa. The applicant may, of course, find it harder to do so than he now realises. For this reason, the Tribunal gives these hardships only limited weight in favour of the applicant.
Other than to study in such a manner that he is able also to support his mother, there is no evidence before the Tribunal to suggest that the applicant has any compelling need to travel to or remain in Australia. The Tribunal gives this factor no weight in reaching its decision.
There is no evidence before the Tribunal to suggest that the applicant has ever been uncooperative to the Department, or has engaged in any bad faith in his dealings with the Department. Nor is there any evidence to suggest that cancellation of the applicant’s visa will cause the consequential cancellation under s 140 of any other visa-held by any third person., nor that it will involve a breach of any of Australia’s international obligations.
The cancellation of the applicant’s visa will carry mandatory legal consequences for him. It may lead to his deportation from Australia, or to detention if he remains in this country. It will also restrict the classes of visa for which he is entitled to apply for a substantial period. Given that the applicant’s breach was not of his own making (as found above), the Tribunal gives this factor a little weight in the applicant’s favour.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
Date(s) of hearing: 19 September 2024
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 of the Migration Regulations 1994 (Cth)
2.43A Minister 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.