Luht (Migration) - [2025] ARTA 1619

Luht (Migration) [2025] ARTA 1619 (14 August 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Ms Kaisa Luht
Respondent:  Minister for Immigration and Citizenship
Tribunal Number:  2432470
Tribunal:Senior Member G Cullen
Place:Sydney
Date:14 August 2025
Decision:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 August 2025 at 12:11pm

CATCHWORDS
MIGRATION – cancellation – Student visa – Subclass 500 – Federal Circuit and Family Court remittal – applicant convicted of offences – gains benefit by fraud – tampered odometers in vehicles for sale – remorseful – partner and child would also depart – has an apartment and can continue studying in Estonia – best interests of child – bridging visa until her child is issued a passport – cost of transporting dog – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 48, 116, 140, 359
Migration Regulations 1994 (Cth), rr 2.12, 2.43; Schedule 4, Public Interest Criterion 4013
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 to cancel the applicant’s Subclass 500 (Student) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
The applicant was granted a Subclass 500 Student visa on 12 March 2021 valid to 21 June 2023.
On 22 November 2022 the delegate cancelled the visa under s 116(1)(g) because the applicant was convicted of offences against the law of the State of Western Australia.
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 lodged an application for review of the delegate’s decision with the former Administrative Appeals Tribunal (the AAT) on 28 November 2022.
The applicant appeared before the AAT via video on 26 June 2023. On 3 July 2023 the AAT affirmed the delegate’s decision.
On 2 August 2024 the Federal Circuit and Family Court of Australia remitted the matter back to the Tribunal for reconsideration on the basis that the AAT failed to afford the applicant procedural fairness by warning her that she does not have to answer question that might lead her to self-incriminate herself. Specifically, there was nothing to suggest that the applicant was not under an ongoing risk of being charged with additional offences relating to the other cars found in her possession (and in relation to which the AAT asked questions at the hearing). The Court also found that the AAT made errors in relation to the circumstances that lead to the applicant’s offending. The Tribunal referred to four instances where the applicant sold a vehicle with an altered odometer. The AAT effectively (and erroneously) doubled the applicant’s offending and made findings on that basis. The AAT, in effect, failed to properly consider the evidence before it regarding the applicant’s offending.
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. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal via video on 6 August 2025 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(g) 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).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(g) if the Minister is satisfied that a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in reg 2.43 of the Regulations. In the present case, the ground in reg 2.43(1)(oa) is relevant.
It provides that:
(1) For the purposes of paragraph 116(1)(g) of the Act (which deals with circumstances in which the Minister may cancel a visa), the grounds prescribed are:
….
(oa) in the case of the holder of a temporary visa other than a Subclass 050 Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa - that the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (whether or not the holder held the visa at the time of the conviction and regardless of the penalty imposed (if any));
On 1 July 2022 in the Perth Magistrates Court, the applicant was convicted of the following offences.
·Gains Benefit by Fraud: Criminal Code (WA); 409(1)(c)(B) – fine being $7,500.
·(Attt) Gains Benefit by Fraud: Criminal Code (WA); 409(1)(c) – fine being $7,500.
On 8 November 2022 the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of the visa outlining these convictions. In her response she indicated that she deeply regrets committing these acts and she promised never to violate the law again. She also outlined why the visa should not have been cancelled. These reasons are considered below.
In the first hearing, the applicant acknowledged the convictions but indicated that the total fine was $7,500. In the recent hearing the applicant also acknowledged the convictions. She confirmed the total fine was $7,500. The Tribunal accepts that the total fine was $7,500.
On the evidence before it, the Tribunal finds that the applicant, while holding a temporary Subclass 500 Student visa, was convicted of an offence against the law of the State of Western Australia. For these reasons, the Tribunal is satisfied that the ground for cancellation in s 116(1)(g) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the visa should be cancelled.
Consideration of discretion
Except for visas cancelled on the basis of a breach of visa condition under s 116(1)(b), 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 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.
Background
The applicant is a single 30-year-old female citizen of Estonia.
She is in a de facto relationship with Tanil Kliimand, also a citizen of Estonia. At the hearings she said he previously held a Skilled visa to March 2024 and has since applied for a Student visa. She said he is not currently studying. Together they have a female child born in Australia on 17 May 2023. The child is not an Australian citizen. She attends day care. Neither have any family residing in Australia. Her parents have recently purchased them an apartment in Estonia.
She does not work due to a no-work condition being placed on her Bridging visa. A no-study condition has also been placed on her Bridging visa. Prior to the visa being cancelled she was working as a cleaner.
She arrived in Australia on a Subclass 651 Visitor visa and was granted a Student visa onshore on 12 December 2018 valid to 15 May 2019. She was granted further Student visas to 12 March 2021. At the recent hearing she indicated she held these visas as a member of the family unit of her former de facto partner. She was granted a Subclass 500 Student visa on 12 March 2021 valid to 21 June 2023 as the primary applicant which was cancelled by the Department on 22 November 2022.
Her study record while holding this Student visa as the primary applicant indicates she successfully completed a Diploma of Leadership and Management studied from 26 April 2021 to 22 April 2022. She was enrolled to study the Advanced Diploma of Leadership and Management from 25 April 2022 to 21 April 2023 but her enrolment was cancelled. At both hearings the applicant indicated she had completed five units towards the Advanced Diploma of Leadership and Management, She said she wants to complete the course and paid approximately $4,000 to study this course. She said she ceased studying the course due to the convictions and cancellation of her visa.
She provided the following response to the NOICC.
I deeply regret the acts I have committed and I promise never violate the law again. I haven´t had any previous law infringements in Australia or in Europe. This situation has affected me hard in emotionally and physically. I regret my previous decisions what have caused to other parties financial and emotional damage. I made a mistake when I helped the person who I thought was my friend to sell a vehicle. He offered me some money to use my name as a vehicle owner, clean and sell his vehicle. I wasn´t sure about the vehicle condition or that the odometer was tampered. As it seemed like reasonable offer for me I decided to help him. I didn´t know where or when the vehicle was purchased or what was the price he paid for it. I didn´t think how serious will be the consequences then but I have taken now full responsibility to pay the fine and to be responsible for my actions.
Past year and 8 months I´ve taken my studies very seriously. To finish advanced diploma of leadership and management next year would be my goal. It´ll be very useful to have diploma acquired in Australia for further job search in Europe.
Visa cancellation would affect me and my partner lives drastically. I´m 4 months pregnant and we´ll welcome our first child into this world next year end of April. I have found myself best doctors around me and already place where to give birth. Australia medicine is highly valuated and I feel safe to trust doctors in this amazing country. My visa cancellation also means that my partner will not finish his diploma and all his effort will be wasted.
I have also listed 3 references from my family members and friends to give you better understanding from the person I am.
She also provided character references. One was from her older sister and the other from her parents. Her older sister referred to her positive character, that she has never been in trouble with the law and that she is ashamed, embarrassed and sad at her offending. Her parents also referred to her positive character and noted their shock when they heard about her charges as she has always been a responsible human being. They noted that the applicant has told them how regretful she is and how much shame she feels.
On 15 March 2023, following a request from the AAT the Australian Border Force provided a Statement of Material Facts (SMF) relating to the applicant’s conduct.
At the hearing in 2023 the AAT raised with the applicant via s 359AA the following information purportedly from the SMF. The AAT referred to four instances of the applicant “being involved in selling a vehicle after the odometer on the purchased vehicle had been tampered with and attempts were made to sell the vehicle at inflated prices.” The AAT raised with the applicant that this indicated she had been engaged in not insignificant criminal and fraudulent conduct and noted that the information indicates that in one of the interviews she indicated she knew the odometers had been altered. It raised with her that this is inconsistent with her claim she was not aware of this and was helping a friend. It raised with her the inconsistency with her statement in response to the NOICC.
The applicant responded that she was not sure the odometers were tampered. She said she told the police she only saw that the kilometres were low. She confirmed she did not know the odometers had been tampered.
At the recent hearing the Tribunal asked her first about the two convictions. It noted it was only asking her for details about the matters for which she had already been convicted. She said one conviction was for selling a Toyota Kluger with a tampered odometer in 2021 and the second condition related to have a Nissan for sale in April 2022 with an altered odometer. The later was not sold. She said the person she thought was a friend gave her an opportunity to make money if she sold the vehicles, She said he gave her the vehicles and she put them up for sale.
The Tribunal raised with her via the process outlined in s 359A that the SMF refers to her as receiving two vehicles for sale that she knew had altered odometers and referred to the two vehicles that related to the convictions. In response she says she takes full responsibility for the criminal convictions. She said she knew when selling or putting up for sale these two vehicles that the odometers had been altered. She said she told the police in April 2022 when selling or attempting to sell the above vehicles that the odometers had been tampered with.
The Tribunal then said it wanted to talk to her about the two additional vehicles referred to in the SMF. The SMF referred to two additional vehicles being seized with altered odometers. It then raised with her the following.
Before you answer that question, I must inform you that you are entitled to the privilege against self-incrimination. What that means is that you are not obliged to answer a question if the answer to the question tends to prove that you were guilty of a criminal offence or liable to pay a penalty. You may only refuse to answer the question on that ground. You may answer the question – even though the answer tends to show that you have been guilty of a criminal offence or liable to penalty – but you do not have to.
If you wish to claim the privilege, it is for me to decide whether you may validly claim it.
The applicant said she did not want to answer any questions about these two vehicles. The Tribunal accepted this response. It outlined to the applicant that it places no weight on the material referred to in the SMF regarding the two additional vehicles in considering whether to exercise its power to cancel the visa. It has outlined its reasoning below.
The Tribunal then outlined and discussed with her the discretionary criteria. It specifically referred to the best interests of her child and that that this is a primary consideration. It asked her whether there was any other relevant matter the Tribunal should consider or whether she had anything to add. It raised a number of concerns. Where relevant her evidence and the responses to the concerns raised are considered below.
Consideration
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 applicant was first granted a Subclass 500 Student visa as the primary applicant on 12 March 2021 which was originally valid to 21 June 2023 until it was cancelled on 22 November 2022. While holding the visa she successfully completed a Diploma of Leadership and Management studied from 26 April 2021 to 22 April 2022. She was then enrolled to study the Advanced Diploma of Leadership and Management from 25 April 2022 to 21 April 2023 but enrolment was cancelled due to the convictions and cancellation of her visa. It accepts her evidence she completed five subjects and that she was enrolled, studying and achieving course progress until her visa was cancelled. The Tribunal accepts her purpose of staying in Australia while holding the Student visa until it was cancelled was to study and achieve course progress. It gives this consideration some weight against cancelling the visa.
As to whether there is a compelling need for her to stay in Australia, she referred to wishing to stay to finish the Advanced Diploma of Leadership and Management as this will allow her to obtain a better job on return to Estonia. While she said there were equivalent courses in Estonia that offered the same employment outcomes, she was concerned she would have to start again and forgo the $4,000 she has already paid towards the Advanced Diploma of Leadership and Management. While it accepts she will have to start the course again and forego the $4,000 as well as the five units studied, the Tribunal does not find this represents a compelling need to remain in Australia.
She also referred to her de facto partner being in Australia and that he is the main income earner for their family. She said he is on a Bridging visa, with their daughter part of his application. She said she is not studying. She said later in the hearing if her visa is cancelled, her partner and her daughter would return to Estonia. She said he is working as a carpenter in Australia and while there is seasonal work in Estonia, employment is more difficult. She also referred to the difficulties transporting their dog. She said her parents have purchased them an apartment. While there would be some adjustment difficulties the Tribunal does not find these circumstances represent a compelling need to remain in Australia.
It has considered the information in the NOICC as to the difficulties she would face as she was pregnant at the time. The evidence indicates she has now had the child.
It has considered the difficulties her partner would face being unable to study. However, it notes her evidence is that he is not studying. It is of the view he can study on return to Estonia as she said their quality is comparable.
The Tribunal does not accept that any of the circumstances she has raised reflect a compelling need to remain in Australia. It gives this neutral weight.
The extent of compliance with visa conditions
The Tribunal acknowledges that there is no other evidence the applicant did not comply with any other conditions on his Student visa.
The Tribunal gives this factor neutral weight.
Degree of hardship that may be caused (financial, psychological, emotional or other hardship)
At hearing the applicant referred to wanting to complete the Advanced Diploma of Leadership and Management. She referred to forgoing the $4,000 she has spent on the course and the five units passed if her visa remains cancelled and she returns to Estonia. While it accepts her evidence that she can study a similar course in Estonia and the quality and employment outcomes are similar, as she will have to forgo her previous study and money spent it gives this circumstance some weight against cancelling the visa.
She referred to the difficulties moving countries if the visa remains cancelled. She said her partner would return with her. She said her daughter would return with her. She also referred to the emotional hardship, as her daughter is settled at childcare and her partner will need to find employment. She said it would take time to find childcare and new employment. She referred to adjustment difficulties for them all moving countries as well as their dog. She said while her parents are in Estonia they both work full time. She said while her parents have purchased an apartment for her it will take time to fix. The Tribunal accepts if the visa remains cancelled, the applicant, her partner and child will face these difficulties. However, as they have only ever held temporary visas, and her partner has only applied for a temporary visa; such difficulties would be faced whether the visa was cancelled or not at some time in the future.

It has also considered that her partner has applied for a Student visa in a separate application. At hearing she said her partner is not studying. She said he would return with her if the visa remains cancelled. As the courses are similar in quality and employment prospects in Estonia as in Australia, the Tribunal is of the view he can study on return to Estonia if he wishes to accompany the applicant if the visa remains cancelled. The Tribunal gives this a small about of weight against cancelling the visa.
Overall, the Tribunal gives this consideration some weight against cancelling the visa.
Circumstances in which the ground of cancellation arose
The ground for cancellation arose when the applicant was convicted of two offences involving two cars, She was convicted of the following offences.
·Gains Benefit by Fraud: Criminal Code (WA); 409(1)(c)(B) – fine being $7,500.
·(Attt) Gains Benefit by Fraud: Criminal Code (WA); 409(1)(c) – fine being $7,500.
The evidence from the applicant indicates these convictions relate to two vehicles. The first where a vehicle was sold by the applicant where the odometer was altered or tampered with to obtain a better price. The second vehicle she attempted to sell. It was not sold. It also had an altered odometer. The Tribunal accepts the applicant’s evidence at the recent hearing that while she did not tamper with the odometers she knew when selling the first and attempting to sell the second vehicle that this had occurred to both vehicles. While her evidence at hearing is different to that provided in the response to the NOICC, it places more weight on her oral evidence provided at the recent hearing.
It accepts her evidence and the evidence of the character witnesses that she deeply regrets committing illegal acts, it is out of character for her and she takes full responsibility. It accepts the likelihood of her reoffending as extremely low.
Notwithstanding, the Tribunal considers the conduct engaged in by the applicant, which led to the convictions, was serious. She was residing in Australia as the holder of a temporary visa and her evidence is she was cognisant of the fact the odometers were tampered and would have known it was illegal. It was within her control not to engage in the offending conduct. The Tribunal considers that the circumstances in which the ground of cancellation arose weigh in favour of the exercise of the Tribunal’s discretion to cancel the visa.
In making this finding, it places no weight on the information in the SMF regarding two other vehicles seized with altered odometers. No charges were laid with regard to these vehicles and there is no evidence in the SMF that she attempted to sell these vehicles or was aware these vehicles had altered odometers.
Past and present behaviour of the visa holder toward the Department
There is no evidence that the applicant has not been co-operative in her dealings with the Department in the past.
The Tribunal gives this consideration neutral weight.
Whether there would be any consequential cancellations under s 140
While the applicant is in a de facto relationship and has a two year old daughter they are not secondary applicants in the Student visa the subject of the cancellation by the delegate. There is therefore no evidence that any other person’s visa would or may be cancelled if the applicant’s visa were 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 hold a Bridging visa for a short period of time, usually 35 days, to allow her to finalise her affairs before returning to Estonia. It accepts that she is waiting for the Estonian authorities to issue her daughter a passport. It accepts the Department can extend the Bridging visa and would likely do so for her to obtain the documentation for her daughter to depart with her if the visa remains cancelled.
If the applicant remained in Australia without a valid visa, she would be residing unlawfully and liable to detention and removal. The applicant, however, provided oral evidence to the Tribunal that she intended to comply with any lawful direction to depart Australia, and therefore the likelihood of the applicant being detained is remote.
Under s 48, 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. Under public interest criterion (PIC) 4013 she also may in some cases not be granted a further visa for three years from the date of cancellation of the delegate’s decision.
There is no restriction on the visa she can apply for once she leaves Australia.
The evidence indicates the applicant’s partner has applied for Student visa. The legal consequence of the cancellation is that she would be barred from applying onshore as a member of the family unit of her partner. However, at hearing she indicated if her visa remains cancelled, her partner will return with her. She also said her husband is not studying which is a core purpose for the grant of a Student visa. Notwithstanding, on the basis of the legal consequences, the Tribunal gives this low weight against cancelling the visa.
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
When asked by the Tribunal whether she had any fear of returning to Estonia; she said she fears the war in Ukraine will spill over into Estonia. She said Estonia is next to Russia and used to be part of Russia. While these circumstances do not appear to breach the non-refoulement requirement or similar provisions, the Tribunal is of the view that her claims can be fully considered via a protection visa application if she fears the relevant harm on return. The Tribunal is of the view that this is the appropriate mechanism for assessing her claims if she fears return to Estonia.
While her daughter is not part of the application the Tribunal has considered her best interests as a primary consideration. The evidence indicates the applicant’s daughter was born in Australia in 2023. She does not have Australian permanent residence or citizenship. Both her parents are of Estonian nationality and they are awaiting documentation from the Estonian authorities for her to travel. She attends childcare. The applicant said she would return with her if the Tribunal affirms the Department decision. She said her partner and the father of her child would also return to Estonia were the visa to remain cancelled.
The applicant’s daughter is only two years of age. It accepts there will be some adjustment difficulties for her in having to leave the childcare centre she attends where she has made some friends and move to Estonia. It accepts it may take a short period for her to find further childcare in Estonia. The Tribunal considers that the applicant’s daughter is very young and as both her parents will travel with her, she would overcome the change quickly and adjust to a new country and childcare. The child’s extended family also reside in Estonia. Considering what decision would be in the best interest of the applicant’s daughter, the Tribunal accepts on the totality of the evidence that there would be some very minor adjustment difficulties for her but that as both her parents would travel with her it would be negligible. It gives this neutral weight.
There is also no information before the Tribunal that a decision to cancel the applicant’s visa would be in contravention of the Convention Against Torture.
The Tribunal gives this consideration neutral weight.
Any other relevant matter
When asked she initially said that there is no other relevant matter for the Tribunal to consider. The applicant the applicant referred to her dog and the cost of transport to Estonia. The Tribunal gives this s small amount of weight against cancelling the visa.
The Tribunal has carefully considered all the applicant’s circumstances individually and cumulatively. The most significant fact in favour of cancellation is the circumstances which led to her being convicted of criminal offences. It accepts she is remorseful, however has given this significant weight in favour of cancelling the visa. The Tribunal accepts that her purpose of being in Australia was to study but notes she can study the same course in Estonia. It accepts there will be hardship for her as she will forego the money spent studying the Advance Diploma of Leadership and Management and will not be given credit for the five units completed. It has given this some weight against cancelling the visa. It accepts there will be hardship for her and her partner adjusting to returning to Estonia and has given this some weight against cancelling the visa. It has considered the cost of returning their dog and the legal consequences of the cancellation. It has considered the best interests of the applicant’s child as a primary consideration but considering her age, and that both her parents would travel with her, it gives this neutral weight.
Overall, in balancing the totality of the circumstances and weight given, the Tribunal considered that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
Date of hearing: 7 August 2025