Ruo (Migration) - [2024] ARTA 852

Ruo (Migration) [2024] ARTA 852 (26 October 2024)
DECISION AND
REASONS FOR DECISION
Applicant:Miss June Wanjiru Ruo
Respondent:  Minister for Home Affairs
Tribunal Number:  2316356
Tribunal:General Member C Kannis
Place:Perth
Date:26 October 2024
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 26 October 2024 at 1:13pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – enrolment in a registered course – applicant ceased enrolment – birth and adoption of the applicant’s child – mental health issues – financial hardship – employment – compelling need – decision under review affirmed
LEGISLATION
Education Services for Overseas Students Act 2000, s 19
Migration Act 1958, ss 116, 140, 359
Migration Regulations 1994, Schedule 8, Condition 8202; r 1.03, 2.43
CASES
Liu v MIMIA [2003] FCA 1170
Plaintiff M64/2015 v MIBP [2015] HCA 50
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 3 October 2023 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s 116(1)(b) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant failed to comply with a condition of her visa. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
A copy of the Decision Record was submitted to the Tribunal by the applicant for the purposes of the review.
The applicant appeared before the Tribunal by MS Teams on 21 October 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 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. 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.
Did the applicant comply with Condition 8202?
On 15 January 2019, the applicant was granted a Subclass 500 (Student) visa with condition 8202 attached.
Condition 8202, as it applies in this case, is set out in the attachment to this decision. Relevantly, it requires that the applicant:
·be enrolled in a full time registered course: 8202(2)(a)
·maintain enrolment in a registered course that will provide a qualification from the Australian Qualification Framework that is at the same level as, or at a higher level than, the course in relation to which the visa was granted: 8202(2)(b)
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(2)(c)(i), and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(2)(c)(ii).
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.
In the present case, the applicant’s visa was cancelled on the basis that she was not enrolled in a full-time registered course.
Evidence of confirmation of enrolment is accessible on the Provider Registration and International Students Management System (PRISMS), which is the computer system that registered providers must use to enter the information required under s 19 of the Education Services for Overseas StudentsAct 2000 (ESOS Act).[1] In particular, a ‘confirmation of enrolment’ means the information a registered provider must give under s 19 of the ESOS Act when a person becomes an accepted student of the provider.[2]
[1] s 19(3) of the ESOS Act. The relevant computer system to enter this information for the purpose of s 19(3) of the ESOS Act is ‘PRISMS’, which is defined in the National Code 2018 as the system used to process information given to the Secretary of DET by registered providers. See also the Explanatory Statement to the Education Services for Overseas Students Regulations 2019 (Cth) (ESOS Regulations).
[2] Migration Regulations 1994, reg 1.03 defines ‘confirmation of enrolment’ as a confirmation by a registered provider that the student is enrolled in a registered course as required by s 19 of the ESOS Act.
The information from PRISMS shows that the applicant was not enrolled in a registered course from 31 August 2021. On the evidence before the Tribunal, the applicant was not enrolled in a full-time registered course from 31 August 2021 and the Tribunal finds that she breached condition8202(2)(a) of her visa.
For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(b) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether to exercise its discretion to cancel the visa.
Consideration of the discretion to cancel the visa
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.
The Tribunal has 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’, as set out below.
On 4 August 2023, the Department of Home Affairs issued the applicant with a Notice of Intention to Consider Cancellation (NOICC) because she had ceased to be enrolled in a registered course from 31 August 2021 and had therefore failed to comply with condition 8202(2)(a) of her visa.
Response to NOICC
On 18 August 2023, the applicant responded to the NOICC via her migration agent and provided the following information:
·She accepts she breached her student visa condition however there were circumstances beyond her control.
·She is now enrolled in a Bachelor of Community Service.
·She came to Australia to study Certificate III in Individual Support leading to Diploma in Nursing. She completed the Certificate III in Individual Support and then changed course from Diploma of Nursing to Diploma of Community Service.
·Her life took an unexpected twist when in February 2020 she discovered she was pregnant. It was too late to consider an abortion and she had to proceed with the pregnancy. The circumstances became more challenging as she was unsure about the identity of the father.
·She was without any support in Australia. The circumstances made it impossible to continue with her studies.
·Her son was born on 6 August 2020. This experience posed physical, emotional, and mental challenges for her. She was young and unprepared for parenthood.
·Throughout her pregnancy she reached out to Adoption Services and the Department for Child Protection (DCP) with the intention of exploring adoption for her child. Following the birth her primary concern shifted to ensuring the well-being of her child. This period was marked by episodes of depression and anxiety. During that time the COVID-19 pandemic exacerbated her challenges. She found herself in a different emotional state and unable to resume her studies.
·Despite endeavours by her and DCP they encountered difficulties in identifying suitable adoptive parents and this contributed to an increased level of stress and strain on her well-being. After 19 months a well-suited couple expressed their willingness to adopt her child and on 29 March 2022 the adoption was finalised.
·Despite the successful adoption she continued to grapple with the aftermath of the situation and her mental and emotional state remained unsettled.
·Her situation took a more challenging turn when the university cancelled her CoE. She was emotionally and mentally stressed out and far away from family.
·She could not enrol in the course after her CoE was cancelled.
·Her anxiety and frustration increased and she could not deal with the situation. Due to everything happening she could not get back to her studies. A long time passed and she was still struggling to figure out her future pathways. When she received the NOICC it was a moment of realization that she had reached a tipping point.
·She is committed to rising above the challenges and made a firm decision to continue her studies. She has enrolled in the Bachelor of Community Service.
·Cancellation of the visa will cause problems and stress to her family members who have high hopes for her. They invested money for her Australian study and living and it will be wasted. Returning would hinder her ability to pursue further studies, given the intense competition for admission.
·She may not be able to secure the employment she might possibly achieve with qualifications. ,She will not be able to credit or benefit of education in Kenya. The education system in Kenya is quite different from Australia and part studies may not be recognized.
·Her goal is to become a community service professional and serve the people of her country. Initially, she was enrolled Nursing however, due to challenges she could not complete the course. Her objective is to complete the course and return to Kenya. Initially, she plans to begin her career at an entry-level role within a community service organization and eventually advance into higher positions. Ultimately, she aspires to contribute to the community service sector at the United Nations.
At the time of responding to the NOICC the applicant provided the following documents:
·Adoption documents including Birth Certificate of Child born 6 August 2020 ad General Adoption Consent Document dated 7 April 2021;
·Government of South Australia My Safety Plan dated 22 February 2022 completed by the applicant (described as Flinders University Safety Plan);
·Torrens University Conditional Letter of Offer dated 21 January 2023 for Bachelor of Community Services; and
·Letter dated 18 August 2023 from Senior Social Worker Adoption Services Department for Child Protection in relation to facilitation of the connection between the applicant, her child and the adoptive parents.
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 her 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 her PRISMS enrolment record, she was enrolled in the following course of study:
a.She was enrolled in a Certificate III in Individual Support which she finished on 5 July 2019;
b.She was enrolled in Diploma Of Nursing which was cancelled on 29 July 2019 due to Non-commencement of studies;
c.She was enrolled in a Bachelor of Nursing which was cancelled on 14 August 2019 due to Non-commencement of studies;
d.She was enrolled in a Certificate IV in Preparation for Health and Nursing Studies which she finished on 13 December 2019;
e.She was enrolled in a Diploma of Community Services which she finished on 15 July 2021; and
f.She was enrolled in an Advanced Diploma of Community Sector Management which was cancelled on 31 August 2021 due to Non-payment of fees.
The Tribunal explained to the applicant that this information was relevant because it indicates that from 31 August 2021 she did not maintain enrolment in a registered course. The Tribunal explained that this information may be relevant to assessing whether she breached the conditions of her student visa by not maintaining enrolment in a registered course of study. The Tribunal explained that the information may also be relevant in considering the discretion to cancel the Student visa, including in considering her purpose for remaining in Australia.
The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether she had any comment in relation to her PRISMS enrolment record. The applicant told the Tribunal she agreed with her PRISMS enrolment record and said her enrolment was cancelled on 31 August 2021 because her mother was late in transferring money for her enrolment fees from Kenya.
The applicant confirmed that she has not been enrolled in a registered course since 31 August 2021 and said her statement in her NOICC response that she was now enrolled in a Bachelor of Community Service was incorrect as she had only obtained a Letter of Offer for the course.
The Tribunal asked the applicant about the care of her child from his birth on 6 August 2020 until he was adopted on 29 March 2022. She said she had the child for 3 hours three times per week and he was otherwise with a foster parent.
The applicant told the Tribunal that she continued to attend classes after the birth of her child until her enrolment was cancelled in August 2021. She explained that her mother lost her employment as a result of COVID-19 and therefore she transferred money to pay her tuition fees 3 months after they were due. She said she was not permitted to enrol after making payment because the course had already started and she would have been left behind. The applicant explained that she discussed her options with her mother who said she would send more money so she could look for another education provider. The applicant said she was confused and depressed and was planning to go back to study after her mother sent her more money to enrol with another education provider. She said her mother had difficulty raising the money because she had lost her job and was trying to obtain a loan. The applicant referred to the Torrens University Conditional Letter of Offer dated 21 January 2023 for a Bachelor of Community Services which set out the tuition fees payable for the course. The Tribunal pointed out that it is reasonable to expect a visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.
The Tribunal asked the applicant about the statements in the NOICC response regarding her mental and emotional state in 2020, 2021 and 2022 and in particular her depression and anxiety. She said she did not seek any treatment for her mental health in 2020 and 2021. She said she talked to her general practitioner about her depression however he did not consider she required medication. She said in 2022 she was referred to a clinic for therapy however her health insurance did not cover this therapy so she did not pursue it.
The Tribunal put to the applicant that she was aware that from 31 August 2021 she was not enrolled in a registered course. The applicant conceded she knew she was not in school and not complying with a condition of her visa and said she knew it was a ‘big deal’. In response to the Tribunal asking whether she contacted the Department about her change in circumstances she said she did not do so because she did not think to do it.
Noting the applicant’s evidence that she planned to return to study, the Tribunal put to her that she was also aware that she was not enrolled throughout the whole of 2022 and up until she received the NOICC on 4 August 2023 and asked her how she spent her time during that period. In response she said she worked 20 hours per week as a support worker in aged care and disability in 2021, 2022 and 2023 save for 6 months in 2022 when she had a break from work. She said her employment income was sufficient to pay her living expenses because she lived in a share house and caught buses and trains.
The Tribunal asked the applicant her statement in the NOICC response that the COVID-19 pandemic exacerbated her challenges. In response she said it was difficult to see her mother struggling emotionally and financially when she lost her job. She said she could not tell her mother about her son because her mother was already struggling.
When asked about the purpose of her travel to Australia, the applicant told the Tribunal that she came to Australia to study and get a degree so she can achieve her goals. In response to the Tribunal asking whether she has a compelling need to remain in Australia, the applicant said she wants to finish her degree.
When asked about the hardship that may be caused by cancellation of the visa, the applicant said study in Australia is more advanced than in Kenya and if she doesn’t obtain a degree in Australia there will be limited career opportunities for her in Kenya.
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 her Student visa (see paragraph 33 below) and finds she was not complying with the purpose of her Student visa and this weighs in favour of visa cancellation. The Tribunal accepts the applicant’s evidence at the hearing that she wishes to complete her 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 her to study. The applicant was not enrolled in a course of study for a period of nearly 2 years prior to the issuing of the NOICC. The Tribunal finds the applicant’s breach of condition 8202 to be significant because she was not engaging in the study for which her visa was granted and was not fulfilling the purpose of her travel to and stay in Australia.
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]
[3] Plaintiff M64/2015 v MIBP [2015] HCA 50 at [31].
The Tribunal questioned the applicant as to whether there was a compelling need for her to remain in Australia. In response, she said she wants to finish her degree. The Tribunal accepts that the applicant wishes to complete her study but does not consider this constitutes a compelling need to remain in Australia.

The applicant’s non-engagement in the study for which her visa was granted, and the absence of compelling reasons for her to remain in Australia, weighs in favour of visa cancellation.
The extent of compliance with visa conditions
The applicant has not complied with condition 8202 of her student visa because she has failed to maintain enrolment in a full-time registered course of study for a period of nearly 2 years. The requirement to maintain enrolment is a fundamental condition for the grant of a Student (Subclass 500) visa. There is no evidence before the Tribunal that she has not complied with the other conditions attached to her visa.
The applicant’s non-compliance for a period of nearly 2 years from cancellation of her enrolment until the issuing of the NOICC weighs in favour of visa cancellation.
The degree of hardship that may be caused (financial, psychological, emotional or other hardship)
The applicant told the Tribunal that if her visa is cancelled and she doesn’t obtain a degree in Australia there will be limited career opportunities for her in Kenya. The Tribunal accepts cancellation of her visa may adversely affect the applicant’s employment prospects in Kenya.
The Tribunal gives the possible hardship that may be caused to the applicant some weight against cancellation.
Circumstances in which ground of cancellation arose; whether there were any extenuating circumstances beyond the visa holder’s control that led to the grounds existing.
The applicant’s visa was cancelled as a result of her failure to maintain enrolment. The applicant was not enrolled in a course for nearly 2 years prior to the issuing of the NOICC. She told the Tribunal that this was due to the late transfer of money to her in 2021. She said he mother transferred the fees 3 months late and therefore her enrolment was cancelled. She said she planned to enrol with another education provider and to this end she obtained a Letter of Offer from Torrens University in January 2023 however her mother had difficulty raising the tuition fees. As noted, it is reasonable to expect a visa holder to temporarily depart Australia until their financial situation improves rather than remain in Australia and continue to not comply with their visa conditions.
The applicant said she suffered with depression and anxiety during the period of non-enrolment. She said her general practitioner did not consider she required medication she was referred to therapy, which she did not pursue for financial reasons. At the hearing her main reason for ceasing study appeared to be because her mother was unable to provide the tuition fees. The applicant’s evidence was that during the period of non-enrolment, save for 6 months in 2022, she continued her employment. This has strongly invited the Tribunal to consider that the applicant did not take condition 8202 seriously as a Student visa holder.
Regarding the applicant’s claim that the COVID-19 pandemic exacerbated her challenges, the Tribunal accepts that it would have been difficult to see her mother struggling emotionally and financially.
The applicant told the Tribunal she did not contact the Department about her change in circumstances because she did not think to do it. 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.
For the reasons stated, the Tribunal finds that the breach did not occur in circumstances beyond the applicant’s control. The applicant’s enrolment was cancelled because she ceased to be enrolled in a registered course from 31 August 2021 because she did not have the money to pay for enrolment in a course in 2021, 2022 or 2023. The Tribunal accepts that the applicant faced mental health difficulties in relation to the birth and adoption of her child and her mother’s emotional and financial circumstances as a result of COVID-19. However the Tribunal finds that the applicant knowingly remained in breach of her visa conditions and did not contact the Department about her visa status for a period of 2 years which included all of 2022 and 2023 up until the issuing of the NOICC. The Tribunal finds there are no extenuating or compassionate circumstances in this case and this weighs in favour of visa cancellation.
Past and present behaviour of the visa holder towards the Department
There is no evidence before the Department that the applicant has behaved inappropriately with the Department and the Tribunal gives this factor no weight in its considerations.
Whether there would be consequential cancellations under s 140
There is no one attached to the applicant’s visa and as such the Tribunal gives this factor no weight in its considerations.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and liable to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
The Tribunal is mindful that a cancellation could lead to the applicant becoming an unlawful non-citizen who could be detained under s 189 and removed from Australia pursuant to s 198. The Tribunal is mindful that a visa cancellation could mean that the applicant might face difficulties in being granted further visas in Australia and that she could also be subject to a three-year exclusion period unless she meets the relevant Public Interest Criterion. The Tribunal acknowledges the difficulty this would cause the applicant and gives this some weight against cancellation.
Whether any international obligations, including non-refoulement and best interests of the children as a primary consideration, would be breached as a result of the cancellation
The applicant is a citizen of Kenya and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations. The Tribunal considers this factor neutral in the exercise of its discretion.
The Tribunal has considered Article 3 of the Convention on the Rights of the Child (Convention) (CRC) which requires that in all actions involving children, the best interests of the child shall be the primary consideration. The Tribunal has also considered the family unity principles under International Covenant on Civil and Political Rights (ICCPR). In this case, the applicant gave birth to a child on 6 August 2020. The child was formally adopted on 29 March 2022.
The letter dated 18 August 2023 from Senior Social Worker Adoption Services Department for Child Protection said the applicant became uncontactable after her child was placed with his adoptive parents and said she had recently contacted the Department for Child Protection and indicated she wished to reconnect with her child. The letter stated it would be beneficial to the child to maintain a positive relationship with the applicant to support is Kenyan cultural identity and birth family connection and this would be enhanced if the applicant remains in Australia. At the hearing the applicant did not raise the issue of contact with her son when asked about the hardship that may arise from cancellation of her visa. The Tribunal considered whether to cancel or not cancel the applicant’s visa would be in the child’s best interests. The Tribunal, on balance, considers that any cancellation outcome would not result in a breach of Australia’s international obligations under the CRC or ICCPR.
The Tribunal gives this consideration no weight against cancellation.
Any other relevant matters
The Tribunal is not aware of any other considerations in relation to the cancellation.
Conclusion
The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has found that the applicant has breached condition 8202 of her visa. The Tribunal considers the breach to be significant because the Tribunal has formed the view that the applicant was not fulfilling the purpose of her travel to and stay in Australia as she was not undertaking the study for which her visa was granted. The Tribunal has found that there are no extenuating or compassionate circumstances in this case and that the cancellation will not affect any other person’s visa. It will not be in breach of Australia’s international obligations. The Tribunal is prepared to accept that some hardship may be caused by the cancellation and that there is nothing adverse known about the applicant’s past and present conduct towards the Department.
The Tribunal recognises that the cancellation of the visa is a significant matter. However, on balance, and considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Date of hearing:  21 October 2024
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