Ngugi (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Ngugi, a citizen of Kenya, whose Student (Temporary) (Class TU) Higher Education Sector (subclass 573) visa was cancelled by a delegate of the Minister. The cancellation was based on the applicant's alleged failure to comply with a visa condition. Ms. Ngugi sought a review of this decision by the Tribunal.

The primary legal issue before the Tribunal was whether Ms. Ngugi had failed to comply with her visa conditions, specifically condition 8202(2) which requires a student visa holder to be enrolled in a registered course of study. If a breach was found, the Tribunal also had to consider whether to exercise its discretion to cancel the visa, taking into account the applicant's circumstances and the purpose of her stay in Australia.

The Tribunal found that evidence from the Provider Registration and International Student Management System (PRISMS) indicated that Ms. Ngugi had not been enrolled in a registered course since 28 April 2016, a period of over three weeks after her visa was granted on 5 April 2016. This failure to maintain enrolment in a registered course constituted a breach of condition 8202(2). In considering the exercise of discretion, the Tribunal acknowledged Ms. Ngugi's stated desire to study and obtain a qualification to improve her life, her family ties in Australia, and her history of study in Australia since 2010. However, the Tribunal noted the significant period of non-enrolment and concluded that while she had come to Australia to study, she could complete her nursing degree in Kenya.

Ultimately, the Tribunal affirmed the delegate's decision to cancel Ms. Ngugi's visa, finding that the breach of the visa condition was established and that the circumstances did not warrant the exercise of discretion to set aside the cancellation.