Lagat (Migration) - [2025] ARTA 146

Lagat (Migration) [2025] ARTA 146 (6 February 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Kelvin Kibet Lagat
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2318252

Tribunal:Senior Member G. Cullen
Place:Sydney
Date: 6 February 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 06 February 2025 at 10:04am
CATCHWORDS

MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not enrolled in full-time registered course – discretion to cancel visa – injury and medical report – changes of course and delay in enrolling after recovering – current course progress and fees paid – mandatory legal consequences – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(b), 375A
Migration Regulations 1994 (Cth), Schedule 2, cl 8202(2)

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 8 November 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 under s.116(1)(b) on the basis that the applicant did not comply with condition 8202 which requires the visa holder (hereinafter referred to as the applicant) to be enrolled in a registered course.
The applicant lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 10 November 2023.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal via video on 23 January 2025 to give evidence and present arguments. His representative attended the hearing.
This decision and statement of reasons is made by the Tribunal.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
Section 375A certificate of non-disclosure
A certificate was issued by the Minister for Immigration under s 376 of the Act certifying that disclosure of certain documents on his file would be contrary to the public interest.
On 16 January 2025 the Tribunal wrote to the applicant attaching a copy of the certificate, advising him that it considered the certificate to be valid, inviting him to comment on its validity. He did not respond.
The information covered is the Department notes as to the assessment of the visa criterion. As there is nothing in these notes other than what is already outlined in the Department decision, the Tribunal has decided not to disclose the information to him.
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 (the Regulations). If the applicant has breached that condition, under s.116(1) of the Act, the visa may be cancelled.
The applicant was granted a subclass 500 Student visa offshore on 12 February 2021 valid to 4 April 2025. That visa was subject to condition 8202. He arrived in Australia on 24 December 2021.
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 registered course, or in limited cases, a full time course of study or training: 8202(2);
·has not been certified by his or her education provider, as not achieving satisfactory course progress as specified: 8202(3)(a); and
·has not been certified by his or her education provider, as not achieving satisfactory course attendance as specified: 8202(3)(b).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a registered course: condition 8202(2).
The applicant was notified of the intention to consider cancellation (NOICC) of his visa on 12 October 2023. The Tribunal is satisfied that the NOICC was validly issued. The applicant responded to the NOICC and did not dispute that he had not been enrolled in a course of study from 17 October 2022.
He provided reasons as to why he had not been enrolled in the response to the NOICC which are considered below.
The delegate found the applicant had not been enrolled in a registered course of study from 17 October 2022 to the date of the Department decision on 3 November 2023.
The applicant confirmed in oral evidence to the Tribunal at hearing that he was not enrolled in a course of study from 17 October 2022 to 3 November 2023 while the holder of a Student visa. The applicant did not dispute that he had not complied with condition 8202(2) of his visa.
Therefore, on the evidence, the Tribunal finds that the applicant was not enrolled in and did not have a Confirmation of Enrolment (CoE) in a registered course or a full-time course of study or training from 17 October 2022 to 3 November 2023 while the holder of a subclass 500 Student visa. Failing to maintain enrolment means that the applicant has not complied with condition 8202(2).
The Tribunal is therefore satisfied that the grounds for cancellation in s.116(1)(b) exist.
Consideration of the discretion to cancel the visa
Having found that the applicant has not complied with a condition of the visa, the Tribunal must consider whether the visa should be cancelled.
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction ‘General visa cancellation powers’.
Background
The applicant is a 23-year-old citizen of Kenya. He is single with no dependents.
He first arrived in Australia on 24 December 2021 on a subclass 500 Student visa granted offshore on 12 February 2021 and valid to 4 April 2025.
The following is a summary of the evidence provided at hearing, in the response to the Notice of intention to Consider Cancellation of the visa, a statutory declaration by the applicant declared on 26 October 2023 as well as in pre and post hearing submissions submitted by his representative. The applicant also provided a statement addressing the genuine temporary entrant criteria, supporting documentation as to the injury sustained on 17 September 2022 as well as evidence of his academic progress and fees paid.
As to his study he completed the Tertiary Preparation Course online in Kenya due to Covid. He provided the certificate of completion for this course and the PRISMS record confirms he finished this course.
He then arrived in Australia to study a Bachelor of Nursing at the Australian Catholic University (ACU). He studied the first semester in 2021, successfully completing three units. The submitted academic record confirms this.
He then changed to study the Bachelor of Exercise and Sports Science and was enrolled in that course from 18 July 2022. As to why he changed his course of study, he referred to an interest in this area as he was a talented footballer.
While enrolled in the Bachelor of Exercise and Sports Science he suffered a hand fracture on 17 September 2022, his hand was plastered and he was advised to rest the hand for 8 weeks. A letter from Dr Tanhan confirmed the applicant consulted him on 26 September 2022 for a right-hand injury, an Xray confirmed a fracture and a cast was placed on his hand. The letter from Dr Tanhan noted the applicant was unable to focus on his academic studies, he referred to the effect of the injury on his studies for the previous two weeks and that it would affect his studies for the next 6 to 8 weeks. The applicant also provided a copy of a form he submitted to the ACU advising the university of the injury and the impact on his studies, specifically that as the injury was to his dominant right hand, he was and would be unable to write or type. This was signed by Dr Tanhan.
He said at hearing he withdrew from the Bachelor of Exercise and Sports Science in October 2022 as he was told to do so otherwise he would fail that semester. He said he could not pass the semester due to the pain in his hand.
He said the injury took four months to heal until February 2023. He said due to the pain he did not want to return to study the Bachelor of Exercise and Sports Science. He said he wanted to go back to study nursing, but the nursing course was full for semester one and two at ACU. He said all the courses were full. He provided evidence of approaching ACU to study the Bachelor of Nursing in October 2023. At hearing he said he also approached Torrens and Avondale to also study nursing at those education providers but their courses in 2023 were full. He also said it is difficult to start nursing mid-way through the year.
He then enrolled in a Bachelor of Community Services at Torrens University, which he is currently studying from 19 February 2024 to 6 December 2026. He provided an academic record that he completed six out of nine units studied as part of this course in 2024 and that he is enrolled in three units in semester one, 2025. He provided a statement as to why he is now studying community services. At hearing he discussed why he wanted to study this course referring to his interest in the area and the employment opportunities in Kenya. When asked why he could not study the course in Kenya, he referred to the quality of the education in Australia being far better than in Kenya and that it is highly recognised.
After the hearing he provided evidence that he has paid $20,852.27 towards his current course. He said he must pay a further $7,000 in a month for the three units he has enrolled to study in semester one, 2025.
The applicant also provided additional evidence at hearing as to why the visa should not be cancelled which were relevant is considered under each of the headings below.
The purpose of the applicant’s travel and stay in Australia, whether the applicant has a compelling need to travel or remain in Australia
The purpose of the visa grant was for the applicant to travel and stay in Australia for the purposes of study. It accepts he completed the Tertiary Preparation Course online in Kenya instead of Australia as due to Covid he could not travel to Australia. His completion of this course to prepare him for his study in Australia indicates his purpose was to travel to Australia to study. The Tribunal accepts that the purpose for his travel to Australia was for study.
The Tribunal accepts from the completion of three units that he was genuinely studying the Bachelor of Nursing. It accepts he changed his enrolment to the Bachelor of Exercise and Sports Science in July 2022 for the reasons he claims. It accepts due to his hand injury he could not successfully study from September 2022 to February 2023. It accepts due to poor advice he withdrew from the course in October 2022 so he would not fail units.
It accepts he encountered difficulty enrolling in the Bachelor of Nursing in 2023 as the courses were already full. It accepts that it can be difficult to enrol in nursing mid-way through the year. Notwithstanding, there were other courses he could have enrolled in and it is puzzling while having waited a year to study the Bachelor Nursing he is now enrolled in a Bachelor of Community Services which he could have studied from February 2023.
The evidence indicates he is now achieving course progress in the Bachelor of Community Services, having successfully completed six out of nine units studied in 2024. He has enrolled in a further three units in semester one, 2025. He has paid $20,852 to study this course in 2024 which is a significant sum.
On the basis of his current course progress and significant fees paid in the Bachelor of Community services, as well as the reasons he gave as to why he wants to study this course, the Tribunal accepts his purpose of staying in Australia is to study.
As to whether there is a compelling need for him to stay in Australia and complete the Bachelor of Community Services, he could return and study a similar course in Kenya but would forgo the units already studied and the significant sum already paid to study the course.
The Tribunal gives this discretionary factor much weight in favour of exercising its discretion not to cancel the visa.
The extent of compliance with visa conditions
There is no information before the Tribunal that the applicant did not comply with any other conditions on his visa.
The Tribunal gives this factor neutral weight.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
As the applicant is currently studying, the Tribunal accepts there will be a degree of hardship if the visa is cancelled. It accepts he will forgo the money spent on the Bachelor of Community Services course he is part way through, amounting to $20,852. It accepts he will not be credited with the units already completed. It accepts the course in Australia is better than any similar course in Kenya and that it is more highly regarded. It accepts his employment opportunities will be affected if he has to return to Kenya and complete the course there.
The Tribunal gives this consideration weight in favour of exercising its discretion not to cancel the visa.
Circumstances in which the ground of cancellation arose
The ground for cancellation arose as the applicant fractured his arm in September 2022 and was unable to study the Bachelor of Exercise and Sports Science. He withdrew from the course in October 2022 on the advice of the advisor so he would not be recorded as failing units. While the Tribunal accepts in 2024 he attempted to re-enrol in a Bachelor of Nursing at ACU, the courses were full. At hearing he said he also attempted to enrol in nursing at Avondale and Torrens. It is curious why ultimately enrolling in community services in 2024 he did not attempt to enrol in this course in 2023 after his hand had healed by February 2023. It would expect if he wanted to study community services he would have attempted to enrol in this course in 2023.
While the Tribunal accepts the initial period of non-enrolment was beyond the applicant’s control and this, as well as obtaining a COE in the nursing area may have impacted his ability to study, it has difficulty accepting that he could not have enrolled in a community services or other course in 2023.
The Tribunal gives this factor some weight in exercising its discretion not to cancel the visa.
Past and present behaviour of the visa holder toward the Department
There is no evidence that the applicant has not been co-operative in his dealings with the Department in the past.
The Tribunal gives this consideration low weight the favour of exercising its discretion not to cancel the visa.
Whether there would be any consequential cancellations under s.140
The applicant claimed to be single with no dependants. There is no evidence that any other person’s visa would or may be cancelled if the applicant’s visa was cancelled.
The Tribunal gives this factor neutral weight.
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
There are mandatory consequences in the case of the cancellation of the visa, including detention and removal from Australia, as well as difficulties in obtaining any further visas.
If the visa remains cancelled the applicant would likely be granted a Bridging visa for a short period of time to allow him to finalise his affairs before returning to Kenya. If the applicant remained in Australia without a valid visa, he would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that he intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
If the visa is cancelled, the applicant may be subject to a restriction under s 48 of the Act and the applicant would be restricted to applying for a limited class of visas under the Act. Under public interest criterion (PIC) 4013 he also may in some cases not be granted a further visa for three years from the date of cancellation. The cancellation may also restrict the applicant’s future ability to make a valid application for any visa other than those prescribed in reg 2.12 while onshore.
There is no restriction on the visa he can apply for once he leaves Australia.
The Tribunal gives this consideration neutral weight.
Whether Australia’s 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 Tribunal has no evidence that Australia’s international obligations may or would be breached if the applicant’s visa was cancelled. There is no information to indicate that a visa cancellation would be in breach of Australia’s non-refoulement obligations, nor has the applicant applied for refugee status or invoked Australia’s protection obligations. At hearing the applicant said he did not fear return to Kenya.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in breach of the Conventions of the Rights of the Child (CROC) or that it would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matter
The Tribunal has considered the applicant’s circumstances individually and cumulatively.
The Tribunal has considered that he was not enrolled in a course of study from 17 October 2022 to 3 November 2023 and this is a significant period of time. However, it is satisfied that there are numerous aspects that are favourable to the applicant as outlined above.
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 applicant’s Subclass 500 (Student) visa.
Date(s) of hearing:  23 Janaury 2025
Representative for the Applicant:           Mr Bimal Bhattarai (MARN: 9685736)
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.