Mukhtar (Migration) - [2025] ARTA 408

Mukhtar (Migration) [2025] ARTA 408 (14 February 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ali Mukhtar
Respondent:  Minister for Home Affairs
Tribunal Number:  2318565
Tribunal:General Member C Kannis
Place:Perth
Date:14 February 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 February 2025 at 12:10pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – gap in studies – late course fee payment – family health issues – return visit to Pakistan – limited communication from university – financial hardship – good academic progress when in Australia – compelling need – decision under review set aside
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; rr 1.03, 2.43
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF REASONS
APPLICATION FOR REVIEW
1.This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
2.The delegate cancelled the visa under s 116(b) on the basis that that the applicant failed to comply with a condition of his 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.
3.The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT).
4.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.
5.The applicant appeared before the Tribunal on 10 February 2025 to give evidence and present arguments.
6.The applicant was represented in relation to the review.
7.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
8.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. 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.

Does the ground for cancellation exist?
9.On 4 February 2022, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
10.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).

11.The requirements of condition 8202 do not allow the visa holder to cease to be enrolled in a course: Liu v MIMIA[2003] FCA 1170.

12.In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full time registered course.
13.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.

14.The information from PRISMS shows that the applicant was not enrolled in a registered course from 5 October 2022 to 28 November 2023 . On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 5 October 2022 until 28 November 2023 and the Tribunal finds that he breached condition8202(2)(a) of his visa.

15.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 discretion
16.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.
17.The Tribunal has also had regard matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’, as set out below.
18.On 13 October 2023, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because he had ceased to be enrolled in a registered course from 5 October 2022 and had therefore failed to comply with condition 8202(2)(a) of his visa.
Response to NOICC
19.On 19, 20 and 26 October 2023 the applicant responded to the NOICC via a written submission from his representative which included the following:
·The applicant takes responsibility for the oversight in understanding the visa criteria which led to the breach of his visa conditions.
·The applicant arrived in Australia in August 2018 to pursue a Diploma of Commerce leading to a Bachelor of Commerce. He completed his Diploma of Commerce on 9 June 2020 and began his Bachelor of Commerce on 25 July 2020 and continued without issue to October 2022.
·In October 2022, the applicant encountered unexpected medical and financial issues. This led to a reduction in his course load standard four and in making tuition payments within the given timeframe, resulting in a late payment of $7,113.00 with late fees on 12 August 2022. The remaining amount of $2,863.00 was paid after the deadline.
·Throughout this period, the applicant was not informed or warned by the university that his enrolment would be cancelled due to the outstanding fees.
·The applicant became aware of the enrolment cancellation when he visited the student support department after losing access to his student portal. The university advised him on the next steps, which included the option to withdraw or re-enrol in the next semester, scheduled for February 2023.
·The applicant decided not to withdraw but to continue his studies with the university in the next intake as he had already paid the required fees and all funds remained in the university's account. The applicant believed his enrolment issue had been resolved.
·Just before the new semester in mid-January 2023, the applicant received news that his father was facing severe health issues and given his advanced age, the applicant felt compelled to be by his side during this challenging time.
·Due to the severity of his father's condition and his recurring health issues the applicant had to remain in his home country for an extended period from 18 January 2023 to 22 August 2023. The emotional and psychological stress he experienced during this period was overwhelming.
·The applicant returned to Australia on 22 August 2023 and on 18 September 2023 he required medical treatment and was admitted to Fiona Stanley Hospital. Following his recovery he decided to pursue his studies with determination, as suggested by the university.
·The applicant’s intention has always been to study and comply with his visa conditions. Since 2018 until October 2022 he paid his tuition fees on time. He never sought a refund from the university, even in challenging circumstances. His strong emotional connection with his family and his father's dream of him pursuing further studies in Australia have been important factors influencing his decisions.
·The applicant’s misunderstanding of the visa regulations was a genuine mistake. His commitment to completing his studies was evident in his diligent enrolment, timely payment of fees and willingness to continue his education even in the face of financial challenges.
·The lack of communication from the university regarding the enrolment issue left the applicant in a state of confusion, a situation exacerbated by his father's deteriorating health. This emotional turmoil weighed heavily on him and the decision to remain with his family was not taken lightly. His connection with his father, who had envisioned the applicant’s educational success in Australia, was a powerful driving force behind his choices.
·The applicant’s decision to stay with his family came at a cost as it resulted in an unintentional breach of his visa conditions. However, on his return to Australia, seeking medical treatment and his efforts to resume his studies, show a commitment to rectify the situation and fulfil his visa obligations.

20.At the time of responding to the NOICC the applicant provided the following documents:
·Applicant’s Diploma of Commerce certificate from Edith Cowan College dated 9 June 2020;
·Email dated 5 October 2022 from Edith Cowan University (ECU) advising of cancellation of enrolment due to Non-payment of fees;

·Email dated 11 October 2022 from the applicant to ECU advising he had paid his fee the previous day but still had an encumbrance on his portal;
·Email dated 19 October 2022 from ECU advising he could submit a new application to be re-admitted into the course for the next teaching period and that the encumbrance would be lifted manually;
·Email dated 26 October 2022 from the applicant to ECU advising he was still awaiting removal of encumbrance because he wanted to apply for re-admission;

·Email dated 2 November 2022 from ECU advising payment for the outstanding amount had been received and the encumbrance had been lifted. He was advised to contact Admissions in regard to re-admission into his course;
·Undated certificate from Dr Ahmad Bilal PT certifying that Chaudray Mukhtar Ali has undergone bilateral TKR and had been referred to him on 15 February 2023 for mobilization procedure. The surgery occurred on 11 February 2023 and was challenging due to the patient’s age (75 years) and recovery was 5 months and 2 weeks. Dr Bilal PT stated that a family member’s emotional support and encouragement can be beneficial to recovery and it was wonderful that his son was there to support his father and made a big difference in the healing journey;
·Evidence of applicant’s travel to Pakistan in January 2023;
·ECU Request for Payment Tax Invoice dated 28 September 2023 showing no amount due and fees paid for Semester Two, 2022;
·Document described as the applicant’s Bachelor of Commerce transcript showing Unit Name and status (completed or discontinued) for study in 2020, 2021 and 2022;
·ECU confirmation of payments dated 5 April 2022, 8 September 2022, 30 September 2022 and 10 October 2022; and
·ECU Application Receipt (successfully submitted online) for Bachelor of Commerce expected to commence Semester 1, 2024.

Evidence provided prior to hearing

Prior to the hearing the representative provided a written submission dated 24 October 2023 which contained information not materially different to the response to the NOICC. Documents provided at the time of responding to the NOICC were also again submitted to the Tribunal.
The following additional documents were provided:
- Enrolment Form Apeiro Institute for PTE Preparation for success course dated 28 November 2023;
- CoE for Advanced Diploma of Civil Construction Design created on 1 February 2024;
- Academic transcript Apeiro Institute showing the applicant has completed 7 units of the Advanced Diploma of Civil Construction Design (undated); and
- Payment Receipts from Apeiro Institute for Advanced Diploma of Civil Construction dated 13 March 2024, 20 March 2024 11 April 2024, 11 May 2024, 11 June 2024, 11 July 2024, 11 August 2024, 11 September 2024, 11 October 2024, 11 November 2024 and 11 December 2024.
Representative’s written submission dated 3 February 2025 which included the following additional information:
- The circumstances leading to the alleged breach were beyond the applicant’s control. He has taken corrective actions demonstrating his commitment to fulfilling his visa obligations.
- The Department’s decision did not adequately consider the compassionate and compelling circumstances that temporarily prevented the applicant’s compliance or the extenuating circumstances that led to the non-compliance, which include:
- Despite the difficulties he faced, the applicant took steps to rectify his situation:
- The cancellation decision was based on the assumption that the applicant only sought re-enrolment after being contacted by the Department. This is incorrect, as: his consistent academic record from 2018 to 2022 demonstrates a genuine commitment to his studies; he never voluntarily withdrew from his course or sought a refund, further proving his intent to continue his education; his temporary absence from studies was unintended and caused by factors beyond his control; and the Department’s reasoning does not fully acknowledge the humanitarian aspect of his case and presents an unfair characterization of his intent.
- The decision to cancel the applicant’s visa imposes severe hardship, including disruption of his education and career aspirations; loss of significant financial investment in tuition fees already paid; potential consequences in the future, affecting his ability to pursue higher education and employment opportunities in Australia; and severe emotional and psychological distress resulting from the uncertainty of his immigration status.
- The cancellation decision should be set aside on the following grounds: the applicant’s breach was unintentional and caused by extraordinary personal and financial hardships; the applicant has taken corrective action by re-enrolling and resuming his studies; the Department failed to properly consider humanitarian and compassionate factors; and the cancellation causes disproportionate hardship compared to the technical breach.
Evidence provided at hearing
The Tribunal adopted the procedure in s 359A 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, he finished 5 of the 11 courses in which he was enrolled. Relevant to the decision under review, the applicant’s enrolment in a registered course was cancelled on 5 October 2022 and he did not enrol in another course until 28 November 2023. This enrolment was cancelled. The applicant is currently studying an Advanced Diploma of Civil Construction Design. This course commenced on 25 March 2024.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 5 October 2022 until 28 November 2023 he did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether he breached the conditions of his 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 his 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 he had any comment in relation to his PRISMS enrolment record. The applicant agreed with the information in his PRISMS record.
The Tribunal asked the applicant about the statement in the NOICC response that in October 2022 he encountered unexpected medical and financial issues. The applicant told the Tribunal that his father’s business in Pakistan is credit based and relies on vendors making timely payments. He said there were payment delays by vendors and this affected his father’s business and this caused him to pay his tuition fees late in October 2022. He said he knew he would be able to pay the tuition fees albeit they would be paid late. Regarding medical issues, the applicant said he has stomach/bowel problems for which he is hospitalised about once a year. He said this was the reason he decreased the number of units he was undertaking in 2022.

The Tribunal referred the applicant to the email dated 5 October 2022 from ECU which strongly advised him to contact the Department to discuss any implications cancellation of his enrolment may have on his visa and asked him the reason he did not do so. The applicant told the Tribunal that he attended ECU and was advised he could re-enrol in the next semester commencing in 2023. He said he understood that the issue had been resolved and he would just wait to re-enrol in February 2023.
Noting that the applicant was not enrolled in a course after 5 October 2022 and did not expect to re-enrol until February 2023, the Tribunal asked him whether he contacted the Department about his visa status. In response he said he believed the issue had been resolved when he attended ECU.
The applicant told the Tribunal that in January 2023 he had to make the very difficult decision regarding whether to return to Pakistan to assist his father in his recovery from surgery. He said he was receiving calls from home about how he was needed but he was also aware that he had lost a semester of study in 2022, intended re-enrolling in February 2023 and had paid the course fees. The applicant said he has a very close emotional attachment to his father and his father wanted him by his side. He said it was a difficult situation that was beyond his control.
The applicant conceded that he should have contacted ECU prior to departing Australia in January 2023. He said at that time he did not know he would be absent until August 2023 and thought he would return sooner and commence study earlier. The applicant explained that his father’s rehabilitation took several months and although his mother and his siblings reside in Pakistan, it fell to him to ensure his father’s compliance with medication and physical therapy.
The Tribunal asked the applicant about his current study. He said on his return to Australia in August 2023, ECU did not permit him to re-enrol in a Bachelor of Commerce. He wanted to continue studying and researched critical skills courses and enrolled in his current course. He said if his visa is not cancelled he intends enrolling in a Bachelor of Commerce.
The Tribunal asked the applicant about the information in the NOICC response that when he returned to Australia in August 2023 he required medical treatment and was admitted to hospital in September 2023. He said the admission was related to his stomach/bowel condition. A Tax Invoice was provided which evidenced the applicant’s admission to Fiona Stanley Hospital on 13 September 2023.
In response to the Tribunal asking the main reasons he was not enrolled in a course from 5 October 2022 to 28 November 2023, the applicant said after he discussed cancellation of his enrolment in October 2022 with ECU he believed the situation was resolved because he had paid his fees and planned to re-enrol in February 2023. He said in January 2023 his situation changed when he had to return to Pakistan, which he said was an emotional period because of his father’s condition. He said his father’s recovery and rehabilitation was a long and at times painful process. The applicant told the Tribunal that when he returned to Australia in August 2023 he attempted to re-enrol in a Bachelor of Commerce at ECU but was unsuccessful. Documents evidencing his attempt were provided.
When asked about the purpose of his travel to Australia, the applicant told the Tribunal that he came to fulfil his father’s dream that he obtain an Australian educational qualification. In response to the Tribunal asking whether he has a compelling need to remain in Australia, the applicant said he intends to remain enrolled and compliant with visa conditions. He said he wants to complete his studies including a Bachelor of Commerce and work in Australia for 1 to 2 years before returning home to work in his father’s business.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said his father would be disappointed and would have wasted money on paying his tuition fees. He said if he is able to complete his studies and gain some work experience he hopes to use the knowledge and skills to improve his father’s business
The representative made the following oral submissions:
- The applicant felt a strong moral responsibility to assist his father and family when he returned to Pakistan in January 2023.
- The applicant’s father’s business is reliant on payment and the payers took as much time as they could in making payments. Prior to October 2022 the applicant paid his fees on time and even in October 2022 he paid them however it was a late payment.
The Tribunal has considered reg 2.43A. In the present case there are no claims or evidence in relation to certification of workplace exploitation and therefore the only relevant consideration for the Tribunal under reg 2.43A is reg 2.43A(2)(d) which provides that the Minister must have regard to whether there is any evidence before the Minister that the visa holder either was not complying with the purpose of the visa, or is no longer seeking to comply with the purpose of the visa. Unlike the other paragraphs under reg 2.43A(2), this matter does not appear to be directly linked to a workplace exploitation matter. The Tribunal has had regard to whether the applicant was not complying with the purpose of his Student visa (see paragraph 41 below) and finds he was not complying with the purpose of his Student visa and this weighs in favour of visa cancellation. The Tribunal accepts the applicant’s evidence at the hearing that he wishes to complete his study in Australia and would comply with any visa conditions imposed and gives this some weight against cancellation.
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 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 him to study. The applicant was not enrolled in a course of study for a period of more than 12 months prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because he was not engaging in the study for which his visa was granted and was not fulfilling the purpose of his travel to and stay in Australia. The Tribunal accepts that the applicant enrolled in study on 28 November 2023, however this was after he was contacted by the Department on 13 October 2023.
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.[3] The Tribunal questioned the applicant as to whether there was a compelling need for him to remain in Australia. In response, the applicant said he wants to complete his studies including a Bachelor of Commerce and work in Australia for 1 to 2 years before returning home to work in his father’s business. The Tribunal does not consider this constitutes a compelling need.
[3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
The applicant’s non-engagement in the study for which his visa was granted, and the absence of compelling reasons for him 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 his student visa because he has failed to maintain enrolment in a full-time registered course of study for a period of more than 12 months. 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 he has not complied with the other conditions attached to his visa.
The applicant’s non-compliance for a period of more than 12 months 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 of the applicant’s visa will likely cause him emotional hardship because he and his father will be disappointed. The pre-hearing written submission stated that cancellation will cause severe emotional and psychological distress resulting from the uncertainty of his immigration status however no medical evidence was provided to support this contention. Nevertheless the Tribunal accepts that the applicant will be disappointed.
The applicant said if his visa is cancelled he will not be able to complete a Bachelor of Commerce and improve his father’s business. No evidence was provided in relation to how the qualification would improve his father’s business. In response to the Tribunal asking whether he could undertake a Bachelor of Commerce in Pakistan, the applicant said he could undertake that study in Pakistan however it was his father’s dream that he study and gain work experience in Australia.
The Tribunal accepts that cancellation of the visa will mean that some of the tuition fees paid will not lead to completion of courses however notes that the applicant has gained some qualifications in Australia including a Diploma of Commerce.
The Tribunal gives the hardship that may be caused to the applicant 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 his failure to maintain enrolment. The applicant was not enrolled in a course for more than 12 months. He told the Tribunal that the main reasons were due to late payment of tuition fees in October 2022 and his unplanned return to Pakistan for an extended period from January to August 2023. He said the late payment of fees was due to his father’s business not receiving timely payments. No evidence was provided to substantiate this contention. The Tribunal accepts that the applicant did pay his fees albeit they were paid after the due date and that this resulted in the cancellation of his enrolment.
The applicant told the Tribunal that the decision to return to Pakistan in January 2023 was a difficult decision. He said he knew he had lost a semester in 2022 because of the late payment of fees. He said he had paid the fees and intended enrolling at the next possible time which was in February 2023. Against this he felt a strong emotional obligation to be with his father at the time of his surgery in February 2023. The applicant said he believed it would be a ‘quick’ surgery and he would be able to return to Australia within a short period of time. This did not eventuate as his father’s recovery/rehabilitation took several months. He said he provided significant support and care to his father. The medical evidence referred to a family member’s presence during physiotherapy being beneficial and that the applicant’s presence made a big difference to his father’s overall healing journey.
The Tribunal accepts the applicant’s evidence that he has a close relationship with his father and that both he and his father wanted him to be there during his father’s recovery. However the applicant did not provide a persuasive reason for not seeking a deferment of study other than to say that in January 2023 he did not anticipate that he would be in Pakistan for such an extended period and that it was an emotional time for him because he could see his father’s suffering due to pain.
The applicant told the Tribunal that following cancellation of his CoE on 5 October 2022, he thought his visa issues were resolved because he paid his fees albeit late and attended ECU and was advised he could re-enrol in the following semester, which he planned to do. He told the Tribunal that he did not understand that after his CoE was cancelled on 5 October 2022 that he was in breach of his visa conditions. In the Tribunal’s view it is the responsibility of a visa holder to be aware of the conditions of their visa and remain compliant with them.
The applicant told the Tribunal the circumstances in which the grounds for cancellation arose were beyond his control. While the Tribunal accepts that his father’s surgery and recovery/rehabilitation were beyond his control, it does not accept that it was beyond the applicant’s control to enrol and seek a deferment on compassionate grounds from his education provider in 2023. Accordingly, the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control.
The Tribunal places weight on the applicant’s PRISMS record which shows that since his arrival in Australia he has finished 5 courses and is currently studying a course which commenced in March 2024. The Tribunal places weight on the applicant’s payment of fees in October 2022 which were paid not long after the due date. The Tribunal accepts the applicant’s evidence that he believed that he had resolved his enrolment issues after he attended ECU following cancellation of his enrolment. The Tribunal places some weight on the emails between the applicant and ECU dated in October 2022 which demonstrate his attempts to resolve his enrolment issues in a timely manner. The Tribunal accepts the applicant’s evidence that the decision to return to Pakistan in January 2023 was difficult because he wanted to resume his study and because of emotional and moral factors which influenced the decision. The Tribunal accepts that at the time of departing Australia the applicant did not anticipate he would be absent for such an extended period. Given these matters, the Tribunal finds there are extenuating circumstances in this case and this weighs against 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 he could also be subject to a three-year exclusion period unless he 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 Tribunal is not aware of any other relevant matters.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of his 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 his travel to and stay in Australia as he was not undertaking the study for which his visa was granted. The Tribunal has found that the breach did not occur in circumstances beyond the applicant’s control. Against this the Tribunal has found that there are extenuating circumstances in this case and is prepared to accept that some hardship may be caused by the cancellation. The Tribunal also accepts 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 and on balance, and 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 applicant’s Subclass 500 (Student) visa.
Date(s) of hearing:  10 February 2025
Representative for the Applicant:       Mr Bhaumik Patel (MARN: 2217778)
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.