Morley (Migration) - [2025] ARTA 410

MORLEY (MIGRATION) [2025] ARTA 410 (5 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Callum George Morley
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2319484

Tribunal:General Member T. Quinn
Place:Melbourne
Date: 5 March 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.

Statement made on 05 March 2025 at 12:46pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 visa –applicant has breached condition 8202 – was not enrolled in a full-time registered course – applicant’s father’s death – mother’s health – consequential emotional challenges faced by the applicant were out of his control – decision under review set aside
LEGISLATION
Migration Act 1958, s 116
Migration Regulations 1994 (Cth), r 2.43, Schedule 8
STATEMENT OF REASONS
APPLICATION FOR REVIEW

The applicant was granted a Subclass 500 (Student) visa (‘the visa’) on 17 March 2021.
The expiry date of the applicant’s student visa is 15 March 2025, providing for four years during which the applicant would be permitted to reside in Australia for the purposes of full-time study.[1]
[1] See delegate’s decision.
On 24 November 2023, a delegate of the Minister for Home Affairs (‘the delegate’) cancelled the applicant’s visa on the basis that the applicant had failed to comply with a condition of their visa.[2] In this case, the applicant breached subclause 2(a) of condition 8202 of his visa in that he failed to maintain enrolment in a full-time registered course.[3] The applicant did not comply with this condition of their visa from June 2022-24 November 2023.[4]
[2]under section 116(1)(b) of the Migration Act 1958 (‘the Act’).
[3] As required by condition 8202(2)(a) of the Migration Regulations 1994 (‘the Regulations’).
[4]See delegate’s decision.
On 29 November 2023, the applicant applied to the Administrative Appeals Tribunal (‘the AAT’) for a review of the delegate’s decision to cancel the visa.[5]
[5]Pursuant to sections 338(2) and 347 of the Act. A copy of the delegate’s decision was provided to the Tribunal with the applicant’s review application.
On 14 October 2024, the AAT became the Administrative Review Tribunal (‘the Tribunal’). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (‘the Transitional Act’), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal via video hearing on 27 February 2025 to give evidence and present arguments. The applicant was represented in relation to the review and their representative also attended the hearing of 27 February. The Tribunal also received oral evidence from the applicant’s mother. The applicant’s stepfather was also in attendance at the hearing, ready and willing to provide evidence in support of the applicant.
The Tribunal exercised its discretion to hold the hearing by video conference. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also considered its objective to provide a mechanism of review that is fair, just, quick, accessible and responsive and the delay that would occur if the hearing were not be conducted by video in exercising its discretion.
It is for the applicant to satisfy the Tribunal that the requirements of the Act and Regulations have been met. The decision maker is not required to make the applicant’s case. Whilst the concept of onus of proof does not apply to administrative decision making, the relevant facts of the individual case must be supplied by the applicant, in as much detail as necessary to enable the decision maker to properly consider the case that is being put.
I have regarded all the information before me, including the Department and Tribunal files, and all information and evidence provided by the applicant to the Tribunal in concluding that the decision to cancel the applicant’s visa should be set aside. My reasons follow.
STATUTORY FRAMEWORK
The issue in this case is whether the applicant, as the holder of a student visa, has breached condition 8202 of the Regulations. If so, the ground for cancellation is made out and the issue then becomes whether the visa should be cancelled pursuant to section 116(1) of the Act. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under section 116(1A) of the Act and regulation 2.43A of the Regulations, and other matters of government policy.
Under section 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in subsection 116(1)(b) of the Act. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
A visa may be cancelled under section 116(1)(b) of the Act if the Minister is satisfied that the holder did not comply with a condition of their visa. In this instance condition 8202 of the Regulations attached to the applicant’s visa. This condition 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 the applicant was not enrolled in a full-time registered course of study or training.
The applicant was enrolled in a Bachelor of Design (Games) which was cancelled in December 2021 for non-commencement. The applicant was enrolled in and completed a Foundation Studies course in Art, Design and Architecture which he commenced in February 2021, and which was extended in February 2022 to June 2022. Upon completion of that course in June 2022, the applicant was not enrolled. The applicant has not enrolled in another course since that time.
The Department sent the applicant a notice of intention to consider cancellation (‘NOICC’) on 13 November 2023. The applicant responded to this on 19 November 2023.
At no stage has the applicant contested the fact that he was not enrolled from June 2022-November 2023.
On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a). Therefore, there are grounds for cancellation.
For these reasons, I am satisfied that the ground for cancellation in section 116(1)(b) of the Act exists. As that ground does not require mandatory cancellation under section 116(3) of the Act, I must proceed to consider whether the visa should be cancelled.
Timeline and enrolment history
The applicant’s mother and siblings moved to Australia in 2008 and became Australian citizens in 2013. The applicant chose to remain living in the United Kingdom with his father but has regularly visited his family in Australia.
The applicant arrived in Australia on a working holiday visa in January 2020 and the family decided it would be best for him to remain onshore and attempt university education, having never studied in the higher education sector.
The applicant commenced and completed his Foundation Studies course in Art, Design and Architecture from February 2021 to June 2022. Upon completion of that course in June 2022, the applicant was not enrolled. The applicant has not enrolled in another course since that time.
The applicant’s father was mis-diagnosed with Parkinson’s disease in late 2021 but died suddenly in August 2022 with brain tumours which had been the source of his symptoms in 2021. The applicant was unable to be present with his father during this time, nor was he able to attend his father’s funeral. The evidence is clear that this was incredibly distressing for the applicant who had a very close relationship with his father.
The applicant’s mother returned from a trip to Vietnam in October 2022 with salmonella poisoning which led to sepsis and colitis and ultimately uncovered the early signs of leukemia. The applicant’s mother gave evidence at hearing about her ongoing battle with and treatment for leukemia. The applicant’s mother has been hospitalised multiple times since October 2022 and has a severely compromised immune system which means health risks and severity are significantly increased for her as compared to the rest of the population.
On 13 November 2023, the applicant was sent the NOICC. The applicant responded to the NOICC on 19 November 2023 in much the same terms as described above, although his mother’s diagnosis with Leukemia had not been made at that time.
The applicant claimed at hearing he wishes to attempt a Bachelor of Design but may also consider becoming an electrician.
The applicant remains unenrolled because he does not presently have study rights on the bridging visa he has held since her visa was cancelled. Although he has been working.
Consideration of discretion to cancel the visa
For student visas, there are prescribed matters to which a decision maker must have regard as mentioned in section 116(1)(b): section 116(1A) of the Act and regulation 2.43A of the Regulations. The prescribed matters are set out in the attachment to this decision. I have regarded the prescribed matters.
I have also had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’.
Prescribed matters 2.43A
Whether there is evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa.
There is evidence that the applicant was not complying with his student visa conditions from June 2022-November 2023. He gave evidence that he wishes to comply with the purpose of his visa and that he wishes to complete a Bachelor of Design in Australia.
Other considerations
The purpose of the visa holder’s travel and stay in Australia, whether the visa holder has a compelling need to travel to or remain in Australia
I refer to and repeat paragraphs 19-26 above.
The applicant gave confused evidence about his work history onshore but ultimately gave evidence that the impact on his mental health was so severe during late 2022 and 2023 that he was unable to work or study. He had worked on his working holiday visa in 2020 and recently recommenced work in early 2024 while awaiting the outcome of his application for review to keep his mind off his loss, grief and guilt.
The applicant wishes to remain in Australia to complete a Bachelor of Design and possible a vocational trade. He claims that he plans to speak to a career advisor but would like to explore the photography aspect of marketing and creating advertisements.
The applicant has filed some corroborating evidence in relation to his father’s death, his mother’s health issues and his own mental health challenges. His mother also attended the hearing and gave evidence about her health issues over the last two and a half years and the impact this has had on her and her son.
The evidence before me suggests that the applicant is rekindling and rebuilding relationships with his mother, stepfather and siblings who he has lived separately from for many years. The evidence is that he has no direct family members remaining in the United Kingdom and would have little support in that country. I consider the applicant may also wish to remain in Australia for the purpose of maintaining his family ties.
I empathise with the applicant in relation to the aforementioned challenges he has faced. I also understand that a visa cancellation can be disappointing for visa holders and their families.
I have considered all the evidence before me. I place some weight against cancelling the visa regarding this factor.
Circumstances in which ground of cancellation arose
I refer to and repeat paragraphs 30-35 above.
It is clear from the evidence before me that the applicant has experienced intense trauma with the passing of his father followed by the health issues faced by his mother. This trauma has clearly been exacerbated by his uncertain future residence status onshore.
I consider the applicant’s father’s death and his mother’s health and the consequential emotional challenges faced by the applicant were out of his control. And whilst it was open to the applicant to return to the United Kingdom to avoid breaching his visa conditions it is obvious that he needed the support of his mother and family following the loss of his father and that he would have been bereft of emotional support if he had left Australia.
Taking these factors together as a whole, I place some weight against cancelling the applicant’s visa in this regard.
Extent of compliance with visa conditions
The applicant’s breach of the condition of his visa to remain enrolled is concerning, being seventeen months. I consider the seventeen month breach a significant breach and place weight in favour of cancelling the applicant’s visa in this regard. The applicant has otherwise complied with student visa conditions.
The degree of hardship that may be caused to the visa holder and any family members
The applicant gave evidence at hearing about how isolated he would be if forced to return to the United Kingdom with no social or family support now that his father has passed. He also gave evidence of how re-traumatising it would be to be away from his remaining living parent when she is having health issues.
The applicant’s mother gave emotional evidence about how difficult it would be for her and her other children if she could not have the applicant remain in Australia. She gave evidence that it could mean she would have to move to the United Kingdom to support him and that this would mean being separated from her husband and other children and would also mean not receiving the same level of care as she received from the Peter Mac foundation in Australia for her Leukemia.
Evidence was given at hearing about the negative impact the applicant’s departure would have on his evolving relationships with his siblings in Australia.
I accept that the cancellation of a visa is disappointing and that a significant amount of money may be invested in a person in order to set them up in a country to live independently in order to study. I recognise that the hardship is felt by family members who may also feel let down and disappointed.
I am, however, mindful of the seriousness of obtaining a student visa and then remaining in Australia and breaching a condition of that visa.
Ultimately, I consider the evidence in relation to this factor, particularly in regard to the impact on the applicant’s mother, overwhelmingly weighs against cancelling the visa. I place significant weight against cancelling the visa in this regard.
The visa holder’s past and present behaviour towards the Department
There is nothing before the Tribunal to indicate any other adverse conduct by the applicant to the Department. I give some weight against cancelling the applicant’s visa in this regard.
Whether there are persons in Australia whose visas would, or may, be cancelled under section 140 of the Act
This is not relevant to the applicant.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention and removal, or whether 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
If the visa is cancelled, this will result in the following:
a.the applicant will become an unlawful non-citizen and liable to detention under section 189 and removal under section 198 of the Act;
b.the applicant will have limited options to apply for further visas in Australia;
c.the applicant will fall within the criteria whereby a penalty for the breach of condition may be imposed. The applicant could therefore be subject to a three (3) year exclusion period where they will not be eligible to have any temporary visa application approved if they apply for a visa that requires Public Interest Requirement 4013 to be met.
I give little weight to this consideration against cancelling the visa because:
·these are the intended consequences of the legislation when a visa is cancelled under these grounds;
·it reflects the seriousness with which the Department takes this type of cancellation ground;
·the applicant will be eligible to apply for a bridging visa while they make arrangements to depart Australia and therefore the likelihood of detention is only in the event that they do not co-operate in applying for a bridging visa.
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 was 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.
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.
CONCLUSION
Considering the circumstances as a whole, the Tribunal concludes the decision to cancel the applicant’s visa should be set aside.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.
Date(s) of hearing:  27 February 2025
Representative for the Applicant:           Mr Murphy Hawkins
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.
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