Phukringsri (Migration) - [2025] ARTA 299

PHUKRINGSRI (MIGRATION) [2025] ARTA 299 (12 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Suwan Phukringsri
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2318238

Tribunal:General Member P Hunter
Place:Sydney
Date: 12 February 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 12 February 2025 at 2:01pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered course – discretion to cancel visa – personal difficulties and family’s financial difficulties and non-payment of fees – new enrolment made after receiving department’s notice of intention, but not enrolled at time of responding to tribunal’s hearing notice – consent to decision without hearing – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), Schedule 8, condition 8202(2)(a)
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106(3)(b), (c)
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 3 November 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 was found not to have complied 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.
The applicant was invited to appear at a hearing before the Tribunal on 10 February 2025 to give evidence and present arguments.
On 29 January 2025, the Tribunal received a completed Hearing Response form from the representative of the applicant in which was ticked the response, No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing. The form further provided the email and contact number of the applicant and his representative and it was indicated that there was nothing preventing the applicant from participated in the hearing.
In addition, the Hearing Response form was accompanied by a covering letter on the letterhead of the applicant’s representative. The letter dated 29 January 2025, contained in part the following information:
I write to formally advise the Tribunal that my client has chosen not to attend the scheduled hearing on 10 February 2025 at 2:00 PM.
I have discussed the merits of the case with Mr Phukringsri and informed him that his appeal to the ART is unlikely to be successful for the following reasons:
1.He is not currently a student, and
2.There is no new information he can provide regarding his failure to maintain enrolment for over 18 months, which led to the cancellation of his student visa.
After considering these factors, Mr Phukringsri has decided not attend the hearing. He requests that the Tribunal proceed to a decide based on the information already provided to the Department of Home Affairs.
On 6 February 2025, the Tribunal wrote to the applicant to confirm their consent to the matter being determined on papers and its understanding of the information contained in his representative’s submission. The Tribunal did not receive a response and the applicant did not attend the hearing on 10 February 2025.
Decision without a hearing
The Tribunal for the reasons that follow has decided to make a decision without a hearing. Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. Particularly, section 106(3)(b)(ii) of the ART Act notes the Tribunal may make a decision without holding a hearing when the applicant requests the Tribunal to do so.
In this matter the applicant was invited to attend a hearing to give evidence and present arguments. This was an opportunity for the applicant to further present his claims and provide further evidence. He did not do so. Instead, responded that he requested that a decision be made on the papers. Further, his representative advised in writing the applicant had chosen not to attend the scheduled hearing. The Tribunal wrote back to the applicant with its understanding of the instructions in its letter of 6 February 2025. The Tribunal is therefore satisfied that the information provided in the response to hearing invitation form indicates the applicant has made a request to make a decision without holding the hearing of a proceeding within the meaning of s 106(3)(b)(ii) of the ART Act .
Section 106(3)(c) additionally requires that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding.
The Tribunal has considered the statutory objective of the ART as outlined in Section 9 of the ART Act which says:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision-making; and
(e) promotes public trust and confidence in the Tribunal.
‘Adequately determined’ is not defined in the ART Act. The Macquarie Dictionary defines ‘adequate’ as ‘equal to the requirement or occasion; fully sufficient, suitable or fit’ and in a legal context as ‘reasonably sufficient for starting legal action’ in the sense of ‘adequate grounds’.[1] The Tribunal does not consider that ‘adequately determined’ means a decision favourable to the applicant, as it if did, sub-paragraph 106(3)(b)(i), which contemplates a decision being made wholly in favour of the applicant, would be superfluous.
[1] (accessed 20 October 2024)
The Tribunal is of the view that in the context of s 106 and the statutory objectives of the ART, ‘adequately determined’ means that the Tribunal may make its decision without holding a hearing in the proceeding, thereby resolving the proceeding quickly, if it also appears to the Tribunal that this can be done in a fully sufficient or suitable manner based on all the evidence before it.
The Tribunal has considered that the applicant has been provided with an opportunity to attend a hearing to provided further evidence and submissions in relation to his claims. This was an opportunity for him to further present his case and to provide further evidence. It has been provided with submissions, which the Tribunal has confirmed by letter of 6 February 2025, that the applicant can provide no new information and he requests that the Tribunal proceed to decide the matter based on the information already provided to the Department. In addition to the material before the Department, the Tribunal had before it a copy of the Provider Registration and International Student Management System (PRISMS) records of the applicant and his Departmental Movement records. The relevant details contained in these records, particularly his period of non-enrolment was raised with the applicant by the Department as discussed below. The Tribunal places no further adverse weight on these records. Having regard to the statutory objective of the ART as outlined above, the Tribunal finds that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
Finally, the Tribunal has considered whether it would be reasonable to invite the applicant to a further hearing so as to give the applicant another opportunity to provide specifics of his claims and to substantiate his claims; and/or to invite the applicant to make further submissions to elaborate on his claims. The Tribunal has already written to the applicant inviting to a hearing and to give further evidence as to his claims. The hearing was an opportunity for the applicant to further present his claims and evidence. The applicant through his representative has advised that he has no new evidence and that he is not enrolled in a course of study. The Tribunal has confirmed its understanding of this submission in writing. The Tribunal is satisfied that the applicant has been advised that a favourable outcome is not guaranteed based on the information presently before the Tribunal. The Tribunal considers it reasonable to infer that the applicant has presented the case he wishes to present and that he has provided all information that he considers important and relevant. The Tribunal is satisfied that this application does not give rise to any novel questions of fact or law.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
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.
The applicant is a 41 year old citizen of Thailand. He was granted a student visa on 8 October 2020 which was valid until 5 March 2025 in order to undertake study in a Certificate IV, Diploma and Advanced Diploma in Marketing.
On 5 October 2023, the Department sent to the applicant via email, and registered post, a Notice of Intention to Consider Cancellation (NOICC) under s 116(1)(b) of the Act, because the Provider Registration and International Student Management System (PRISMS) records of the applicant indicated that he had not been enrolled in a registered course since 28 April 2022. The applicant was advised that this may be a breach of condition 8202(2)(a) of his visa and that it may form a ground for cancellation of his visa. The applicant was further invited to provide comment to the Department.
On 28 October 2023, the applicant replied to the NOICC by email and provided a copy of an initial psychological assessment report of Hamid Dadgostar dated 23 October 2023, a Confirmation of Enrolment (CoE) in an Advanced Diploma of Hospitality Management with course dates from 6 November 2023 to 2 November 2025, created on 26 October 2024. In his email the applicant set out the following information (in summary):
i.In the previous year he had many problems. He broke up with his ex-partner and he had financial problems as his family in Thailand could not support him because their business was closed due the COVID-19 pandemic. His father was also sick and suffered a stroke. It was a really hard time and he did not feel ready to do anything, whether it be study or work.
ii.He was confused as to whether he should keep studying or return to Thailand immediately. He could not do both of these due to his mental problem and financial problems.
iii.He did not have any close friends in Australia and he was lonely and isolated.
iv.He faced everything himself until his mentality was getting better. He thought that he could not return to study because his visa was cancelled already, but one of the officers from his education provider asked him to come and talk to her about his enrolment and remaining payments and that they might re-enrol him. He did not trust her and he realised that his visa had not been cancelled. He was thinking about going back on track when he got an email notification about cancellation of his visa.
v.He had enrolled in the same course at a new school and he is ready to go back to study again. He went to visit a psychologist to prove that he was mentally strong and ready to go back to study.
vi.He had never had any problems with his study history before and he wished to go back again and follow his education plan.
The delegate was satisfied with the material before them the grounds for cancellation under s 116 of the Act were made out. The delegate considered the submissions of the applicant, however they were satisfied that the grounds for cancelling the visa outweighed the reasons not to cancel the visa, and on 3 November 2023, determined to cancel the applicant’s visa.
On 13 November 2023, the Administrative Appeals Tribunal (AAT) received an application for review from the applicant. together with a copy of the decision record of the delegate.
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.
On review the Tribunal has received from the applicant a copy of the decision record of the delegate and the submissions of his representative dated 29 January 2025 which accompanied the hearing response form.
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.
In his response to the NOICC the applicant proceeded to set out reason why he “did not go to study” did not dispute the information contained in the Department’s NOICC that he had not been enrolled in a registered course since 28 April 2022. The Tribunal further notes the information contained in his representative’s letter to the Tribunal of 29 January 2025, that there was no new information that the applicant could provide regarding “his failure to maintain enrolment for over 18 months.”
The Tribunal is satisfied that the relevant student visa issued to the applicant was subject to condition 8202. It is further satisfied on the information before it that the applicant was not enrolled in a registered course of study between 28 February 2022 and 26 October 2023, the later date being the date the applicant’s CoE in the Advanced Diploma of Hospitality which he provided to the Department is recorded as being created.
Accordingly, the applicant has not complied with condition 8202(2)(a) of his visa.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled. 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 matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.
The representative of the applicant set out that he had informed the applicant that his review application was unlikely to be successful. The Tribunal has proceeded to make its own assessment of the information before it before coming to a determination of the review application.
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 student visa was so that he could undertake approved study in Australia.
The delegate sets out in their decision record that it was the applicant has commenced his study in the Advanced Diploma of Hospitality Management on 11 October 2021, and ceased studying on 28 April 2022, when his enrolment was cancelled for non-payment of fees. Although he had re-enrolled at the time he responded to the NOICC, the information provided by the applicant’s representative to the Tribunal is that the applicant was not currently enrolled. The applicant has not provided evidence of successful completed any courses since the grant of his student visa on 8 October 2020. He has not provided to the Tribunal any evidence that he currently intends to undertake further study. The evidence does not demonstrate that his ongoing presence in Australia is consistent with the purpose of the visa.
In their report of 23 October 2023, Mr Dadgostar and Mr Hamidi, comment that the applicant’s anxiety and depression and resurfaced following the receipt of the NOICC. They also provided a recommendation that the applicant would benefit from further psychological intervention to address his current anxiety and depressive symptoms and to challenge his negative cognitions, as well as increase his problem-solving skills. The applicant has not demonstrated that he had engaged in recommended intervention and is in a psychological condition to return to study which is the purpose of the visa.
The decision record of the delegate, and the report of Mr Dadgostar and Mr Hamidi, set out that the applicant had already undertaken study in Australia in English, a Certificate II, III and IV in Business, a Diploma and Advanced Diploma of Leadership and Management and a Certificate IV in Marketing and Communication. He has already spent a considerable period in Australia undertaking study for his future. On review, the Tribunal has been requested to proceed to decide the matter on the basis of the information before the Department. There is no new information that demonstrates that the applicant at the time of the Tribunal decision has a compelling need to remain in Australia for ongoing study or for any other reason. While it is indicated in Mr Dadgostar and Mr Hamidi’s report that the applicant wished to pursue a career in hospitality, a field he had worked in and enjoyed, it is not demonstrated that the applicant is without relevant study options in his home country or elsewhere.
The Tribunal gives this consideration some weight in favour of the cancellation of the visa.
The extent of compliance with visa conditions
The applicant did not maintain enrolment for a lengthy period from 28 April 2022 to 26 October 2023, a period of approximately 18 months. In correspondence from his representative to the Tribunal it is acknowledged that he was not enrolled for a period of 18 months. This breach of the visa condition but also considered to be significant by the Tribunal as the requirement to maintain enrolment in a registered course goes to the core purpose of the grant of the visa.
There is no evidence before the Tribunal that the applicant has not complied with any other conditions of his visa.
The Tribunal gives this consideration weight in favour of cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The Tribunal accepts that if the visa remains cancelled the applicant may continued to experience the conditions of anxiety and depression observed by Mr Dadgostar and Mr Hamidi in their report of 23 October 2023. At the time of their report the applicant had also entered into a new relationship, and it is also acknowledged that the visa cancellation may impact the applicant’s relationship.

As set out above, Mr Dadgostar and Mr Hamidi record in their report that the applicant has completed some studies in Australia including courses in General English, a Certificate II, III and IV in Business, a Diploma and Advanced Diploma of Leadership and Management. Further, that as well as enrolling in the Advanced Diploma of Hospitality he had enrolled in the Certificate IV in Marketing and Communication. The evidence is that the applicant has had the opportunity to undertake some studies in Australia which may be of financial benefit for his future remuneration. The applicant has not provided to the Tribunal evidence of a current future intention to resume studies in Hospitality, but in any event, it is not demonstrated that the applicant is without future study options in his home country or elsewhere.
While the applicant does have a sister in Australia he claimed in his submissions to the Department, dated 28 October 2023, that he did not have any close friends in Australia at his school or with whom he could share his problems. In Mr Dadgostar and Mr Hamidi’s report, it is noted that although the applicant arrived in Australia in 2014, he has experienced periods of isolation and loneliness due to his lack of friends and family in Australia. Other than the recent relationship disclosed in the report of Mr Dadgostar and Mr Hamidi, the evidence does not demonstrate that the applicant has developed any other significant ties onshore or that there would be hardship to any other person if the applicant’s visa remained cancelled.
The Tribunal gives this consideration little weight against cancelling the visa.
The circumstances in which ground of cancellation arose.
The ground for cancellation arose because the applicant ceased to be enrolled in a full-time registered course of study from 28 April 2022 until 26 October 2023.
The applicant has claimed that he was not longer able to study due to a deterioration in his mental health because of a relationship breakdown, concern about his father’s health and family financial pressure due to the COVID-19 pandemic. The psychologist report of Mr Dadgostar and Mr Hamidi, report that when the applicant consulted them he stated that he had spiralled into anxiety and depression during this period. The applicant further told Mr Dadgostar and Mr Hamidi that he struggled with concentration and memory recall, which made it difficult for him to maintain his studies. That the applicant developed a sleeping problems and also an eating disorder.
The above symptoms are reported to have lasted several months and the Tribunal accepts that these events could have impacted on the ability of the applicant to maintain his enrolment. However, it is noted that the applicant was not enrolled for a period of approximately 18 months. The applicant has chosen not to provide further evidence or submissions to the Tribunal as to the proximity and duration of these events to his study difficulties. In the assessment of the impact of these events and the applicant’s condition it is noted that the applicant is reported to have only engaged in one consultation with the psychologists at a time when his anxiety and depression resurfaced as he was having to respond to the NOICC.
The Tribunal has considered the claims of the applicant about the communication he had received from his education provider and that he may have held the mistaken belief that his visa was already cancelled. It is, however, not apparent on the evidence to the Tribunal that he lacked the ability for the duration of the period in which he was not enrolled to seek psychological intervention, obtained migration advice from an agent or lawyer or approach the Department about his migration status.
The Tribunal is not satisfied that on the material that the applicant has satisfactorily explained the duration in which he was in breach of his visa condition, nevertheless given the reported psychological condition, it attributes some weight to this factor weight in favour of not cancelling the visa.
The past and present behaviour of the visa holder towards the Department
There is no evidence that the applicant had not been cooperative in his dealings with the Department.
The Tribunal attributes this consideration a little weight in favour of not cancelling the visa.
Whether there would be consequential cancellations under s 140
The applicant is single and he has no dependents upon his visa. There will not be any consequential cancellations if the applicant’s visa is to remain cancelled.
There is no weight attributed to this factor.
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 detention is a possible consequence of cancellation and if so, for how long, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
There are mandatory legal consequences that may apply in the case of visa cancellations. These include restrictions on obtaining a further visa, particularly if the visa remained cancelled the applicant may be subject to a restriction under s 48 of the Act which would limit the which would limit further visa applications while the applicant remained onshore. Further, due to the operation of PIC 4012, the applicant may also be unable to be granted further visas to Australia offshore for three years from the date of cancellation.
These legal consequences are the intended and legitimate consequences of a visa cancellation. The applicant has provided no further material to the Tribunal to indicate that these intended consequences of cancellation would impact him in way that is unintentional or exceptional and relevant to the exercise of the discretion.
The Tribunal gives this factor no weight.
Whether any international obligations, including non-refoulement, family unity and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a citizen of Thailand. There is no information before the Tribunal that indicates that the visa cancellation would impact on Australia’s international obligations or that it would be in breach of Australia’s international obligations or that it would be in breach of Australia’s non-refoulement obligations.
The applicant is does not have any children whose interests would be affected by the cancellation of the visa.
The Tribunal gives this factor no weight.
Any other relevant matters
There is no information before the Tribunal as to any other relevant matters.
Conclusion
The Tribunal has considered all of the evidence and the relevant circumstances of the applicant. Overall there are limited aspects that in favour of not exercising the discretion to cancel. Although it is accepted that the applicant has cooperated with the Department, it is not satisfied that his circumstances account for the extended time he was in breach of the visa condition. The breach of condition 8202(2)(a) is significant as that condition goes to the core purpose of the grant of a student visa, namely to study in Australia. The Tribunal does not find on the material before it that the applicant has a compelling need to remain in Australia or that his continued stay would be in line with the purpose of the visa. It is also unable to find on the evidence that the applicant has demonstrated that there is a degree of hardship that would weigh in favour of the cancellation decision being set aside. The other considerations are generally of low or neutral weight, and the Tribunal is not satisfied that they weigh in favour of the exercise of the discretion not to cancel.
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 Subclass 500 (Student) visa.
Representative for the Applicant: Mr Varun Hudson (MARN: 1685696)