Kiani (Migration) - [2025] ARTA 1741

Kiani (Migration) [2025] ARTA 1741 (22 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Abdul Moiz Kiani
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2400471

Tribunal:General Member D. Gordon
Place:Melbourne
Date: 22 August 2025
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 22 August 2025 at 2:04pm
CATCHWORDS
MIGRATION – cancellation – Subclass 500 (Student) – genuine student – non-compliance of visa conditions – not enrolled in full-time registered course of study – death of family member – attended funeral – enrolment cancelled – bereavement and grief – reasonableness and fairness – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 109, 116, 128, 134B, 140
Migration Regulations 1994 (Cth), r 2.43A; Schedule 8
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 9 January 2024 made by a delegate of the Minister 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 has not been enrolled in a registered course of study since 5 April 2023.
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 appeared before the Tribunal on 20 August 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.
The applicant was represented in relation to the review by Mr Bajwa. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant's student visa should set aside.
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 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 student visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
The applicant very appropriately made concessions that he was not enrolled at the relevant time as set out in the Delegate’s decision.
The Department PRISMS record which was also put to the applicant indicated he was not enrolled at the relevant time as set out in the Delegate’s decision.
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.
There were no issues or considerations which engaged reg 2.43A of the Regulations.
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’s 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.
The Department’s procedural instructions set out the following relevant matters in considering whether a student visa should not be cancelled:
• 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.
• The visa holder’s past and present behaviour towards the department (for
example, whether they have been truthful and cooperative in their dealings
with the department).
• Whether there are persons in Australia whose visas would, or may, be
cancelled under section 140 of the Act.
• Whether there are mandatory legal consequences to a cancellation decision.
• Whether Australia has obligations under relevant international agreements
that would be breached as a result of the visa cancellation.
• Any other relevant matters.
The evidence at the hearing
The Tribunal invited the applicant to give evidence and discuss why his student visa ought not to be cancelled.
The applicant explained that in February 2023 his first cousin in Pakistan passed away. The Tribunal was provided with a copy of his first cousin’s death certificate. He had attended the funeral in Pakistan and returned to Australia, where in April 2023 his enrolment was cancelled.
The applicant explained that due to the grief and loss of his first cousin, he did not continue with his studies and did not leave the house.
He was deeply affected by the death of his first cousin as they had grown up together in Pakistan and he considered they were brothers. A photograph was also provided to the Tribunal of the applicant with his cousin suggestive of happier times.
The Tribunal asked the applicant why he did not seek a compassionate deferral of his studies based on bereavement. The applicant explained that he was in such grief and melancholy that he had not turned his mind to the administrative process of seeking a bereavement deferral.
The Tribunal asked the applicant that respectfully leaving aside the death of his cousin, his prior study history also suggested a lack of commitment. The applicant explained that he had initially come to Australia to study accounting but preferred hands-on practical work and did not cope with his English preparation courses. He wanted to study automotive mechanics.
The Tribunal raised its concern that the applicant needed to be mindful of his obligations on a student visa, the most obvious being to be a student and reminded the applicant of the privilege of being allowed to study in Australia. The applicant conceded this and agreed that if he were to be given an opportunity, he would diligently take up his studies.
Analysis of the cancellation power
A student visa like any other visa is a privilege, akin to a statutory permission or licence and subject to certain conditions imposed by the Commonwealth of Australia.
One of those core conditions is the requirement to be enrolled in a registered course of study, axiomatic to ensuring the visa holder is in Australia for the dominant purpose of studying.
Student visa holders who flout their visa conditions do so at their peril. Transgressions such as using the student visa system to remain in Australia as a de-facto resident, or working excessively in breach of work limitations, or engaging in conduct that harms the Australian community cannot be tolerated and may result in the loss of the visa.
However, the applicant has not engaged in any such conduct.
The applicant ceased his studies and enrolment due to the death of his first cousin and his ensuing grief and sadness.
It would be too harsh and unreasonable to permit his student visa to remain cancelled when the underlying reason for the lack of enrolment was the death of the applicant’s first cousin and his bereavement and grief.
Death of loved ones is a difficult event, often profoundly impacting different people in different ways. Some put up a stone wall and cope and for some the walls crack and can come crashing down.
It is not for this Tribunal to say or assume that the applicant should have put on a brave face and continued with his enrolment and studies after his cousin died. Everyone copes differently with death and grief.
The evidence here was that the applicant was very close to his first cousin, they grew up as brothers and he attended the funeral in Pakistan. He was visibly emotionally discussing his closeness to his cousin and their youth.
The Tribunal accepts that the applicant was so affected by the death of his first cousin that he was not in a position to continue with his studies and enrolment.
The Tribunal also notes that a visa cancellation would impact upon the applicant’s family in Pakistan including the hopes and dreams of his parents. Mr. Bajwa mentioned that the applicant’s father was aware and assurances were given of future compliance.
The applicant is also a young person of 25 years age. He does not have a history of visa non-compliance or any adverse information. He came to Australia in December 2021.
Statutory power including the power to cancel or withdraw a statutory permission and its exercise is conditioned by doctrines of reasonableness and fairness. The power to cancel a visa ought to be exercised reasonably and fairly in light of the factual matrix and relevant considerations as set down in the Act.
The cancellation cannot be sustained on these facts.
It would be too harsh to deprive the applicant of his student visa in these circumstances.
The applicant ought to be given an opportunity of completing his studies in Australia and achieving his education and career aspirations.
Considering the circumstances as a whole, the Tribunal concludes that the student visa should not be cancelled.
The Tribunal acknowledges the helpful submissions of Mr Bajwa which assisted the Tribunal in addressing the concerns and issues raised above.
The Tribunal reminds the applicant of the privilege of holding an Australian student visa and of his obligation to comply with its study conditions.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
Date(s) of hearing:  20 August 2025
Representative for the Applicant:           Mr Jujhar Bajwa (MARN: 0742209)
ATTACHMENT – Extract from Schedule 8 to the Migration Regulations 1994 (Cth)
…
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 to the Migration Regulations 1994 (Cth)
2.43AMinister 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.