Soli (Migration) - [2025] ARTA 1964

SOLI (MIGRATION) [2025] ARTA 1964 (16 JULY 2025)

DECISION AND

REASONS FOR DECISION

Applicant:Ms Titilia Soli
Respondent: Minister for Home Affairs and Citizenship
Tribunal Number: 2318713
Tribunal:General Member D. McCulloch
Place:Sydney
Date:16 July 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 16 July 2025 at 10:09am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered course – ground for cancellation conceded – discretion to cancel visa – most of course completed before illness and death of mother in home country – change of requirements meant no credit allowed – change of provider with no active confirmation of enrolment – intention to enrol in further non-registered course – visa now expired – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b), (1A)
Migration Regulations 1994 (Cth), r 2 43A, Schedule 8, condition 8202(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

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 dated 10 November 2023 to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa under s 116(1)(b) on the basis that the applicant failed to be enrolled in a registered course. 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 is a citizen of Fiji born on [Date]. The visa that has been cancelled was granted on 5 November 2022 for a stay period until 15 March 2024.
The applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) on 23 October 2023. A written response together with documents were provided by the applicant’s representative.
The applicant appeared before the Administrative Review Tribunal (the Tribunal) on 5 February 2025 at 9.30am to give evidence and present arguments.
Based on the applicant not providing documents which were to be provided after the first hearing, the Tribunal convened a second hearing for 1 May 2025 at 9:30am at which the applicant appeared.
The representative did not attend the hearings.
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

Under s 116(1)(b) of the Act, the Minister may cancel a visa if he or she is satisfied that a visa holder has not complied with a condition of the visa. However, the Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
There are currently no prescribed circumstances under s 116(2) requiring the visa not be cancelled, or under s 116(3) requiring the visa to be cancelled, that apply.
The issue in the present case is whether the applicant, as the holder of a student visa, has breached condition 8202 of Schedule 8 to the Regulations. If satisfied the applicant has breached condition 8202, the decision maker must proceed to consider whether the visa should be cancelled under s 116(1)(b). In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and reg 2.43A, and other matters of government policy.
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 from 9 December 2022 until the visa was cancelled on 10 November 2023.
Non-enrolment was acknowledged by the applicant in the first hearing with explanations provided.
On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course. Accordingly, the applicant has not complied with condition 8202(2)(a).

Consideration of discretion

Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the power to cancel the visa should be exercised. For temporary visas other than criminal justice and enforcement visas, there are prescribed matters to which the decision-maker must have regard in determining whether they are satisfied as mentioned in s 116(1)(b): s 116(1A) and reg 2.43A of the Regulations. The prescribed matters are set out in the attachment to this decision.
Beyond the matters prescribed under reg 2.43A, the Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department of Home Affairs’ (the Department) policy guidelines ‘General visa cancellation powers (s 109, s 116, s 128, s 134B and s 140)’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters. These matters include: the purpose of the visa holder’s travel to and stay in Australia; compelling reasons to remain in Australia; the extent of compliance with visa conditions; the degree of hardship that may be caused to the visa holder and any family members; the circumstances in which the ground for cancellation arose; whether there are extenuating circumstances beyond the visa holder’s control; the visa holder’s past and present behaviour towards the Department; whether there are any persons in Australia whose visas would or may be cancelled under s 140 (i.e. consequential cancellation); whether there are mandatory legal consequences to the decision (whether indefinite detention is a possible consequence in light of any non-refoulement obligations; provisions in the Act which prevent the person making a valid application without the intervention of the Minister; whether the person would become an unlawful non-citizen and liable to be detained upon cancellation); whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation; the impact on children of the cancellation; whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and any other relevant matters.
In response to the NOICC, the representative indicated that the applicant was granted the visa on 5 November 2022 to study the following courses:
·Certificate III in Early Childhood Education and Care from 11 April 2022 until 21 October 2022
·Diploma in Early Childhood Education and Care from 5 December 2022 until 17 November 2023
·Diploma in Leadership and Management from 1 January 2024 until 6 September 2024
All of these courses were at the same education provider – Imagine Education Australia. The period of non-enrolment occurred when the applicant failed to commence the Diploma in Early Childhood Education and Care.
In the written response to the NOICC, it indicated that the applicant fully undertook her studies in the Certificate III in Early Childhood Education and Care and had submitted all of her assignments and class work on time. There were two assignments provided in December 2022, which were not marked by the trainer. At the time, the applicant’s mother had gotten unwell with a mild stroke and she returned to Fiji for two weeks.
Once the applicant returned, she followed up with college about her assignments. She was advised that the trainer marked the assignments which were reported to the head of the Department. After a couple of days, the applicant was advised by the trainer that her assignments could not be accepted and advised her to enrol in all the units again. The applicant indicated that this was unfair and she had submitted everything within the due dates and attended 100% of classes and paid tuition fees.
The applicant lost her faith towards the education provider. Through her work, she was introduced to Avenues Training College who offered her enrolment. She was enrolled in January 2023 and continued studying there until August 2023. She was under the impression that this was compliant with the student visa’s conditions. She did not appreciate the need to hold an active Confirmation of Enrolment.
The applicant is committed to be compliant in the future. She has completed several units while at Avenues Training College, certificates of which are attached. She also refers to misconduct of the original education provider. It is indicated that the applicant has acquired a Confirmation of Enrolment in a Diploma in Childcare and is looking forward to resuming her studies.
Provided along with the written response to the NOICC were documents summarised by the delegate as follows:
·Statement from Avenues Training College, dated 3 March 2023, confirming her enrolment in a Certificate III in Early Education and Care. The enrolment start date is listed as 3 March 2023, mode of study is part-time.
·Certificate of Attendance- ‘Loose Parts’, 1 hour duration, dated 30 May 2023.
·Certificate of Attendance- ‘Building Children’s Resilience’, 1 hour duration, dated 28 February 2023.
·Certificate of Attendance- ‘Active Supervision’, 1 hour duration, dated 28 March 2023.
At the commencement of the first hearing, the applicant indicated that she was expecting her lawyer to attend but he did not.
The applicant indicated that she had passed nine units in the Certificate III in Early Childhood Education and Care. She agreed that she would provide evidence of this to the Tribunal by 12 February 2025.
The applicant indicated difficulties with final assignments with the education provider, which indicated that she would have to do the whole course again. The Tribunal expressed scepticism that this would be the case. She indicated that her lawyer had correspondence from the education provider indicating this.
She indicated that she became disillusioned with the education provider and then commenced her other studies at what she thought was in a registered course. The Tribunal expressed doubt to the applicant that she could have genuinely believed that she was enrolled in a registered course given on the evidence it involved only three hours of courses. The applicant indicated that her agent was not acting appropriately in terms of arrangements for her to be enrolled in a registered course. The Tribunal noted to the applicant that it was ultimately her responsibility to ensure that she was enrolled in a registered course.
The applicant indicates that she has a Bachelor’s degree from Fiji and she wants to undertake a Master in Counselling at Avondale University and there are intakes in March or May 2025 that she wants to enrol in and study.
Giving significant latitude to the applicant and assuming that this was a registered course, the Tribunal indicated to her in the hearing that the Tribunal would give her time to enrol in the course with a view to considering not to cancel the visa if she enrols and pays the initial course fee.
The Tribunal asked the applicant to provide evidence after the hearing of enrolment in the course and to indicate when the first set of units would be completed. The applicant did not provide evidence of this in the timeframe requested or thereafter.
The Tribunal’s proposal to the applicant in respect of her desired studies was based on evidence being provided of her passing nine units in the Certificate III in in Early Childhood Education and Care and the course that she desired to enrol in being a registered course
Given the failure to provide relevant documents after the hearing, the Tribunal convened a second hearing to be held on 1 May 2025. The applicant did not respond to the hearing notice in the timeframe requested.
At 3:32pm on 30 April 2025, the day before the scheduled second hearing, the Tribunal received an email from the applicant indicating that she would not be able to attend the hearing next day because she had a driving test which is the only time available this month.
She indicated that additionally she is awaiting the outcome of her request to Avondale University regarding her studies. She also indicated that she needs to obtain certification of some of her academic results from a Justice of the Peace (JP). She indicated that in the circumstances, she is confident she will be able to attend the hearing by the end of the month and provide necessary information and documentation regarding her studies.
The Tribunal wrote back to the applicant in a letter sent by email at 4:17pm on 30 April 2025 providing as follows:
The Tribunal refers to your correspondence today indicating that you cannot attend the hearing tomorrow because of a driving test.
This is not an acceptable reason for not attending the hearing and the priority you
should be placing on your visa status in Australia.
Further, you were to provide evidence of your claim that you passed nine units in a
Certificate III in the Early Childhood Education and Care by 12 February 2025. You
were also to provide evidence of your enrolment in a Masters of Counselling with
intakes in either March or May 2025. None of this information has been provided.
Your academic results do not need to be certified by a Justice of the Peace.
In the absence of you attending the hearing tomorrow and bringing to the Tribunal your claimed academic results the Tribunal will draw significant adverse inference and proceed to make a decision without the opportunity of a further hearing.
The applicant attended the hearing scheduled for 1 May 2025. She provided a transcript dated 8 February 2023 for the Certificate III in Early Childhood Education and Care showing the passing of seven units in the course.
She also provided an email from Admissions at Avondale University, dated 28 March 2025, indicating that it was necessary to provide a transcript to confirm her eligibility for direct entry into the Master’s program. It indicates that transcripts need to be certified. The email refers to semester 2 orientation commencing on 4 August 2025.
In the second hearing, the applicant indicated that contrary to her indication in the first hearing that the Master of Counselling was to commence in March or May 2025, the relevant intake was in fact in August 2025.
The Tribunal noted to the applicant in the second hearing the significant latitude it had given her in the first hearing and expressed very significant concern that relevant documents had not been provided in the timeframe indicated with some documents only being provided at the second hearing.
The applicant apologised but did not otherwise readily explain why the documents had not been provided or why she did not contact the Tribunal to explain why they had not been provided.
The applicant in the second hearing maintained that her initial education provider advised her that there was a new certificate in relation to the previously studied Certificate III in Early Childhood Education and Care and that none of her previously passed seven units would be taken into account in obtaining the new certificate. She would effectively have to start studies from the beginning.
The Tribunal queried that this would be the case and asked for evidence from the education provider that would substantiate this. In the hearing, the applicant searched for correspondence on her mobile phone. The correspondence that she showed to the Tribunal in the hearing referred to the applicant having to re-enrol in the course but it did not indicate that she would get no credit for any of the units previously passed.
The applicant was given the opportunity following the second hearing to provide written evidence from the previous education provider that effectively there was no pathway to get credit from the seven units previously passed.
In relation to the Master of Counselling, the applicant indicated that she is not yet enrolled in this course. The Tribunal gave the applicant a period of two weeks from the second hearing to enrol in this course and to provide evidence of the initial fee paid for enrolment.
The Tribunal put to the applicant that unless all of this information was provided within the requisite timeframe, it would proceed to make a likely adverse decision.
The applicant indicated that she understood what the Tribunal was saying and would provide the required documents within the requisite timeframe.
The Tribunal noted to the applicant that even if evidence was provided from the previous education provider saying that she could receive no credits for any of the units previously passed, she still had the obligation to be enrolled in a registered course and had not been enrolled in a registered course for approximately a year. In response, the applicant indicated that this was due to issues caused her by the death of her mother and when she recovered from these issues, she took steps to reenrol.
Albeit later than two weeks after the timeframe indicated, the applicant provided a text message from the previous education provider responding to a query by the applicant as to why she could not get credit for the seven units passed in the new certificate. The response indicates that it was due to a change made by the Australian government such that they had to change that course to suit the new requirements.
Based on this evidence, the Tribunal is satisfied that the applicant was told she would have to start a new certificate all over again with no credit for previous units passed. As indicated in the second hearing, although very disappointing, this does not in itself excuse not being enrolled for a period of almost a year.
The applicant provided various communications with Avondale University indicating discussions for enrolment in the Master of Counselling. In information provided to the Tribunal on 9 July 2025, Avondale College advised the applicant that their Master of Counselling was not a registered course that would entitle the applicant to a student visa.
The Tribunal then wrote to the applicant indicating that on the basis that the course she wished to enrol in was not a registered course, enrolment in this course would not now be a discretionary factor in her favour and she should not enrol with an expectation that the visa would not be cancelled by the Tribunal.
The Tribunal now deals with the claimed extenuating circumstances in relation to the period of non-enrolment. The Tribunal would make some allowances for a period of non-enrolment in the circumstances of being told that she would have to start her course all over again. However, it does not justify in the Tribunal’s view a failure to be enrolled in a registered course for as long as 11 months. If there were emotional issues caused by the death of her mother, she should have enrolled in a registered course and sought a deferral on compassionate and/or medical grounds.

The Tribunal is not satisfied that the applicant could reasonably have thought that the course that she studied at Avenues Training College was a registered course, particularly given the scant degree of study of which evidence has been provided.
The Tribunal is not satisfied that there are extenuating circumstances beyond the applicant’s control that explain or justify the extensive 11 months period of non-enrolment.
The Tribunal is prepared to accept hardship to the applicant if the visa remains cancelled in terms of having to return to her home country from Australia sooner than she may have hoped and not being able to progress with a Master of Counselling at Avondale University. As indicated, however, this is not a registered course which means that the applicant would have no entitlement to a further student visa based on enrolment in this course. Given that the visa that has been cancelled has expired, a Master of Counselling enrolment at Avondale College would not be a course eligible to facilitate the granting of a new student visa. This is adverse to the applicant.
If the visa is cancelled the applicant could be in Australia on an unlawful basis when her bridging visa expires, potentially subjecting her to immigration detention However, the Tribunal considers that the applicant would be eligible to for a bridging visa while she makes arrangements to leave the country. If the applicant determined not to leave the country and to remain unlawful, it is appropriate, and not a discretionary factor against exercising the discretion to cancel the visa, that she may be subject to immigration detention.
There is no evidence that the interests of children in Australia are affected.
The applicant has not indicated any fear of persecution or significant harm on return to Fiji. The Tribunal does not therefore consider that Australia’s non-refoulment obligations are a relevant discretionary factor.
These are the relevant discretionary factors which the Tribunal balances.
Significantly adverse to the applicant is the Tribunal not accepting that there are extenuating circumstances beyond her control that explain a period as long as 11 months of non-enrolment. As indicated, if there were serious health issues for the applicant caused by the death of her mother, she should have maintained enrolment and sought a deferral on medical grounds.
The applicant’s future desire is to study a Master of Counselling at Avondale University. This is an unregistered course that does entitle a student visa and thus not be a course that would entitle the applicant to a new student visa. Thus, this genuine intended study in Australia is not a discretionary factor which weighs against exercising the discretion to cancel the visa.
The various adverse discretionary factors outlined in this decision are not outweighed by any discretionary factors in her favour including any degree of hardship she will face as a result of the visa being cancelled.
The Tribunal determines to exercise its discretion to cancel the visa.
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(s) of hearing: 5 February 2025 and 1 May 2025
Representative for the Applicant: Mr Bijaya Gurang (MARN: 1805361)

ATTACHMENT – Extract from regs 2.43A and 2.43B of the Migration Regulations 1994 (Cth)

2.43A Minister must have regard to certain matters in considering cancellation of certain temporary visas for breach of visa condition

(1) This regulation applies in relation to a visa if:
(a)the visa is a temporary visa other than:
(i)a criminal justice visa; or
(ii)an enforcement visa; and

(b)the Minister is satisfied that the visa holder has not complied with a particular condition (the relevant condition) to which the holder’s visa is subject; and
(c)regulation 2.43B does not apply in relation to the visa.

(2)For the purposes of paragraph 116(1A)(a) of the Act, the Minister must have regard to the following matters in determining whether the Minister is satisfied as mentioned in paragraph 116(1)(b) of the Act:
(a)any written certificate issued by a certifying entity that is a government entity if the certificate:
(i)was issued in relation to the visa holder in respect of a workplace exploitation matter; and
(ii)sets out the matters agreed to by Immigration and the government entity;

(b)any written certificate issued by a certifying entity that is not a government entity and that states that the entity considers that:
(i)there is prima facie evidence that the visa holder has been affected by a workplace exploitation matter; and
(ii)if any law limits the time within which a proceeding may be instituted, or a complaint made, in relation to the workplace exploitation matter—that time has not expired; and
(iii)there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter by which the visa holder has been affected;

(c)whether there is a connection between the circumstances relating to the breach of the relevant condition and the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(d)whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, with the purpose of the visa;
(e)whether the visa holder has committed, in writing, to do both of the following:
(i)to take action, in a timely manner, to resolve the workplace exploitation matter to which a certificate mentioned in paragraph (a) or (b) relates;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject;

(f)whether the visa holder has failed to comply with a commitment of a kind mentioned in paragraph (e) of this subregulation, or paragraph 2.43B(2)(d), (3)(d) or (4)(d), that the visa holder has previously given in relation to the visa.

(3)Subregulation (2) does not limit, or otherwise affect, a power or duty of the Minister to cancel the visa under:
(a)paragraph 116(1)(b) of the Act for non compliance with a condition (other than the relevant condition) to which the visa holder’s visa is subject; or
(b)a provision other than paragraph 116(1)(b) of the Act.

Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.

2.43B Circumstances in which the Minister is not to cancel certain temporary visa for breach of restricted work condition

(1) This regulation applies in relation to a visa if:
(a)the visa is a temporary visa other than:
(i)a bridging visa; or
(ii)a criminal justice visa; or
(iii)an enforcement visa; and

(b)the visa is subject to a condition (the restricted work condition) restricting the work that the visa holder may do in Australia (other than a condition that prohibits the visa holder from engaging in any work in Australia); and
(c)the Minister is satisfied that the visa holder has not complied with the restricted work condition.

Certificate issued by a certifying entity that is a government entity

(2)For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:
(a)a certifying entity that is a government entity has issued a written certificate in relation to the visa holder in respect of a workplace exploitation matter that set outs the matters agreed to by Immigration and the government entity;
(b)the Minister is satisfied that there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the certificate relates;
(c)the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;
(d)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 the certificate relates;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject.

Certificate issued by a certifying entity that is not a government entity

(3)For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:
(a)a certifying entity that is not a government entity has issued a written certificate stating that the entity considers that:
(i)there is prima facie evidence that the visa holder is currently, or has been within the 12 month period preceding the issue of the certificate, the subject of a workplace exploitation matter; and
(ii)there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder is, or has been, subject;

(b)the Minister is satisfied that there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder is, or has been, subject;
(c)the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;
(d)the visa holder has committed, in writing, to do both of the following:
(i)to take action to resolve the workplace exploitation matter in a timely manner;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject.

(4)For the purposes of subsection 116(2) of the Act, the Minister is not to cancel the visa under paragraph 116(1)(b) of the Act if all of the following circumstances exist:
(a)a certifying entity that is not a government entity has issued a written certificate stating that the entity considers that:
(i)there is prima facie evidence that the visa holder has been the subject of a workplace exploitation matter at a time that is more than 12 months before the issue of the certificate; and
(ii)there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder has been subject;

(b)the Minister is satisfied that:
(i)the workplace exploitation matter to which the visa holder has been subject is serious or systemic in nature; and
(ii)there is a connection between the circumstances relating to the breach of the restricted work condition and the workplace exploitation matter to which the visa holder has been subject;

(c)the Minister is satisfied that the visa holder will comply in future with the purpose of the visa;
(d)the visa holder has committed, in writing, to do both of the following:
(i)to take action to resolve the workplace exploitation matter in a timely manner;
(ii)to comply in future with the visa conditions to which the holder’s visa is subject.

Failure to comply with written commitment

(5)Subregulations (2), (3) and (4) do not apply in relation to the visa if the Minister is satisfied that the visa holder has failed to comply with a written commitment of a kind mentioned in paragraph (2)(d), (3)(d) or (4)(d), or paragraph 2.43A(2)(e), that the visa holder has previously given in relation to the visa.

Other powers or duties to cancel

(6)Subregulations (2), (3) and (4) do 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 restricted work condition) to which the visa holder’s visa is subject; or
(b)a provision other than paragraph 116(1)(b) of the Act.

Note: For example, see subregulation 2.43(2) for the circumstances in which the Minister must cancel a visa.