Kipruto (MIgration) - [2025] ARTA 401

KIPRUTO (MIGRATION) [2025] ARTA 401 (24 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Amos Kipkosgei Kipruto
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2316144

Tribunal:David Thompson
Place:Perth
Date: 24 March 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 24 March 2025 at 12:27pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered full-time course – study history and path – enrolment in non-registered course at non-registered institution organised by agent – enrolment in registered course after receiving department’s notice of intention – current course progress – marriage and newborn child – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), s 116(1)(b)
Migration Regulations 1994 (Cth), r 2.43A, Schedule 8, condition 8202(2)(a)
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 4 October 2023 to cancel the applicant’s Subclass 500 Student (Temporary) (Class TU) visa under s 116(1)(b) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant had breached condition 8202 on his visa, in that he had not been enrolled in a registered course of study between 10 January 2022 and 20 August 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 5 February 2025 to give evidence and present arguments.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
Evidence
As well as giving oral evidence at hearing, the applicant provided the following items of documentary evidence to the Tribunal:
a.the delegate’s decision record and notification letter, both dated 4 October 2023;
b.notification of grant of a TU-500 student visa to the applicant, dated 6 January 2020;
c.identification pages from the applicant's Kenyan passport;
d.Confirmation of Enrolment (CoE) E9FA3756 created on 21 August 2023, recording the applicant’s enrolment in a Bachelor of Community Services at Torrens University Australia, scheduled to run from 18 September 2023 to 23 August 2026;
e.the applicant’s academic transcript for his Bachelor of Community Services course, issued by Torrens University Australia and covering the period trimester 3, 2023 to trimester 3, 2024;
f.a letter dated 12 August 2024 from Dr Sanjida Sultana of Chester Hill Family Medical Practice certifying that the applicant’s wife was at that time 12 weeks pregnant with an estimated delivery date of 22 February 2025;
g.a Torrens University Australia tax invoice/statement of account S0357235 dated 29 August 2023;
h.a Torrens University Australia tax invoice/statement of account S049357 dated 22 August 2024;
i.a Torrens University Australia tax invoice/statement of account S0489660 dated 22 August 2023; and
j.a Torrens University Australia tax invoice/statement of account S0489667 dated 22 August 2023.
Prior to constitution this matter, the Tribunal obtained the Departmental file on the cancellation of the applicant’s student visa. That file contained the following relevant documents provided by the applicant and not already listed above:
a.an email from the applicant to the Department dated 18 August 2023, in response to a Notice of Intention to Consider Cancellation (NOICC) dated 4 August 2023 (also appearing on the Departmental file);
b.a letter of offer dated 17 August 2023 from Torrens University Australia offering the applicant a place in a Bachelor of Community Services course scheduled to run from 18 September 2023 to 23 August 2026;
c.a letter dated 7 August 2023 from the applicant to St Luke’s Orthopaedic Trauma Hospital, Eldoret, Kenya, seeking a report on his mother’s health;
d.a Patient Medical History Report dated 23 November 2021, provided to the applicant by St Luke’s Orthopaedic Trauma Hospital;
e.an Internet payment confirmation recording a payment of course fees to Torrens University Australia on 17 August 2023;
f.the applicant’s certificate of marriage (as extracted from the New South Wales Registry of Births Deaths and Marriages) to Ms Philippine Jepkosgei on 29 July 2023 at Fairfield, New South Wales;
g.the applicant’s certificate of marriage (as extracted from the New South Wales Registry of Births Deaths and Marriages) to Ms Philippine Jepkosgei, as signed by the celebrant;
h.a certificate of completion of a Diploma of Information Technology Networking, issued to the applicant by Western Sydney College on 24 January 2022, with record results attached;
i.an email dated 21 August 2023 from the applicant to the Department, attaching documents in support of the applicant’s response to the Department’s NOICC; and
j.a certificate of completion of a Diploma of Community Services issued to the applicant by MRT College Australia on 8 August 2023, with record of results attached.
In these reasons, the documents listed in the preceding two paragraphs will be referred to by their paragraph numbers. Thus, the document listed at paragraph 9(a) will be referred to simply as ‘document 9(a)’, and so on for the other documents.
Prior to hearing, the Tribunal obtained copies of the applicant’s movement record, and of his record from the Provider Registration and International Student Management System (PRISMS). Information from the latter record was put to the applicant pursuant to s 359A of the Act at hearing.
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. More specifically, the delegate found that the applicant had not been enrolled from 10 January 2022 to 20 August 2023, a period of some 18 months. This is reflected in the applicant’s PRISMS record, which was the source of information upon which the delegate relied. The significance of those dates is that he earlier of them is the day after the applicant completed his Diploma of Information Technology Networking, and the later date is the day before the applicant enrolled in his Bachelor of Community Services course at Torrens University Australia. The applicant gave evidence at hearing that between those dates he had been enrolled in, and had successfully completed, a Diploma of Community Services with MRT College Australia. Document 10(j) was provided in support of that claim.
The Regulations define ‘registered course’ as “a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000 (ESOS Act), to provide the course to overseas students.” The difficulty for the applicant is, as he recognised at hearing, that MRT College was not an institution, body or person registered under that Act, and its Diploma of Community Services course was not a registered course within the definition given in the Regulations. MRT College Australia appears on the National Training Register (although its registration was cancelled on 29 February 2024), but that register is not kept pursuant to the ESOS Act. The applicant’s enrolment in the Diploma of Community Services does not, as he conceded without hesitation or demur at hearing, mean that he did not breach condition 8202 between the stated dates. It is, however, relevant to the second issue before the Tribunal, and will be discussed further below in that connection.
On the evidence before the Tribunal, the applicant was not enrolled in a full time registered course between 10 January 2022 to 20 August 2023. During that period, he was resident in Australia on a TU-500 student visa subject to condition 8202 (amongst others). Accordingly, the Tribunal finds that 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.
All but one of the prescribed matters refer to, and are predicated on the existence of, a certificate issued by a government or non-government certifying authority in relation to a workplace exploitation matter affecting the applicant. There is no evidence before the Tribunal that any such certificate has issued. The remaining prescribed matter requires the decision maker to consider “whether there is any evidence that the visa holder was not complying, or is no longer seeking to comply, it the purpose of the visa.”
The cancelled visa was a TU-500 student visa. The purpose of such a visa is obvious – it is granted to allow the visa-holder to pursue a full time registered course of study in Australia. As has been found above, the applicant was not studying such a course between 10 January 2022 to 20 August 2023. It follows that he was not actually complying with the purpose of his visa for that period. He argued at hearing, however, that he thought he was studying such a course between the relevant dates. His evidence was that his enrolment had been organised for him by an education agent, and that he never imagined or suspected that he had been placed into an unregistered course until he received the Department’s NOICC. He provided context by explaining that he had come to Australia in January 2020 to study in the health sciences area, and was originally enrolled in a package of courses comprised of a Tertiary Preparation Program (Health Sciences) and a Bachelor of Nursing degree. However, he had such trouble adapting to the technology he was required to use in order to study that he withdrew and enrolled in a Diploma of Information Technology Networking. Having completed that course and having remedied his difficulties with technology, he enrolled in the Diploma of Community Services with a view to going on to undertake a Bachelor’s degree in the same subject. He enrolled in such a Bachelor’s degree very shortly after receiving the Department’s NOICC, when he realised that his enrolment status needed to be addressed.
The Tribunal accepts the applicant’s evidence on these points. The applicant was under the impression that he was complying with the purpose of his visa, even if he was not doing so in fact. He has gone on to enrol in a Bachelor of Community Services and has, on the evidence before the Tribunal, completed approximately half the course. He is clearly seeking to comply with the purpose of the visa. This weighs heavily in favour of reinstating his visa.
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 Tribunal has already discussed the applicant’s purpose in seeking to remain in Australia. As regards his purpose in coming to Australia originally, there is nothing n the evidence to suggest that it was anything other than to study, and to return to his own country with foreign qualifications.
The circumstances in which the applicant fell into breach of condition 8202 have been discussed above. It could not be said that the circumstances in which the ground for cancellation arose were beyond his control, but the Tribunal accepts that the breach was inadvertent. It is significant that, even though the applicant was in breach of the requirement to remain enrolled in a registered course of study, he was enrolled in a course of study. It is also significant that that course of study was a step in a path of studies the applicant is still following, and which will equip him with a degree level qualification.
The applicant placed some reliance on his mother’s ill-health as a source of stress in the course of his studies, especially in the period leading up to his enrolment in his Diploma of Community Services, and provided the delegate with documentary evidence as to his mother’s condition: document 10(c). He placed less emphasis on this factor at hearing, but advanced it as a reason why he enrolled in a Diploma of Community Services rather than enrolling directly in the Bachelor’s degree course. In essence, his evidence was that given that he was under a good deal of stress, he decided to do a course that would involve less pressure than full time undergraduate studies, but that would still provide him with a pathway into studies at that level.
The applicant was in breach of condition 8202 for a significant period, some 18 months. That is a significant period in which to be in breach, but the fact that he applicant was actually studying and was not aware of the fact that he was in breach ameliorates the length of the period of breach very significantly.
The applicant gave evidence at hearing as to the hardship he and others would suffer if his visa were not reinstated. He will, of course, be unable to finish a course of study he has half finished, and will lose the benefit of the course fees to date. More importantly, the applicant gave evidence that since coming to Australia he has married. His wife, Ms Philipine Jepkosgei, is also a Kenyan national. The applicant stated, and the Tribunal accepts, that she came to Australia holding her own student visa, and that they met and married here (see document 10(f) and (g), and 9(f)). At the date of hearing Ms Jepkosgei was pregnant, with a due date of 22 February 2025. Presumably, the applicant is now a father. He submitted that if his visa was not reinstated and he was forced to leave the country, he would have to leave his family behind. Further, his child would be deprived of his presence and care, as would his wife. The Tribunal consider that these are real hardships, and in the circumstances of this case weigh heavily in favour of reinstating the applicant’s visa.
There is nothing in the evidence before the Tribunal to suggest that the applicant has failed to cooperate with the Department, or has dealt with the Department in bad faith. This lends some weight to the applicant’s case.
There is nothing in the evidence before the Tribunal to suggest that cancellation of the applicant’s visa would result in the cancellation of any other person’s visa under s 140 of the Act. This circumstance weights neither for nor against the applicant.
The Tribunal accepts that forcing the applicant to leave Australia would not be in the best interests of his and Ms Jepkosgei’s child. This may amount to a breach of Australia’s international obligations under the Convention on the Rights of the Child. This weighs in favour of reinstating the applicant’s visa.
If the delegate’s decision is affirmed, with the result that the applicant’s visa remains cancelled, he will suffer various mandatory legal consequences. He will be required to leave Australia, and may become liable to detention and removal if he does not do so. His ability to make further valid visa applications, at least for some classes of visa, may also be affected. The Tribunal considers that in the circumstances of this case, it would be unjust to subject the applicant to such consequences, albeit that they are the normal consequences of breaching a visa condition.
Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.
Date(s) of hearing:  5 February 2025
Representative for the Applicant:           Mr Munish Luther (MARN: 2217831)
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 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.