Timsina (Migration) - [2025] ARTA 481

TIMSINA (MIGRATION) [2025] ARTA 481 (3 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Miss Alisha Timsina
Respondent:  Minister for Home Affairs
Tribunal Number:  2318776

Tribunal:General Member D Creedon
Place:Perth
Date: 3 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 03 February 2025 at 8:56am
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – non-compliance with condition of visa – not enrolled in registered full-time course – discretion to cancel visa – PRISMS record shows three courses cancelled and no current enrolment – oral and documentary evidence of current enrolment and ongoing study – PRISMS record not reliable – no cogent evidence of non-enrolment and non-compliance – 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 dated 13 November 2023 made by a delegate of the Minister for Home Affairs 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 failed to maintain enrolment in a full-time registered course in accordance with condition 8202 of his Student visa. 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 January 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 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.
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.
Evidence and analysis
Background and hearing
The delegate’s decision record notes the following information:
The visa holder’s visa was granted subject to condition 8202, which requires the holder to be enrolled in a registered course. PRISMS indicates that the visa holder has not been enrolled in a registered course of study from 14 September 2022 to 20 October 2023. As the visa holder has not maintained enrolment in a registered course of study, she no longer meets the requirements of condition 8202(2)(a). Therefore, she has not complied with a condition of the visa.
A review of the applicant’s Provider Registration and International Student Management System (PRISMS) record confirms the delegate’s findings, specifically that the three courses of study particularised therein have each been cancelled, and that the applicant is not currently enrolled in a course of study.
Prior to her hearing the applicant provided several documents to the Tribunal including the following:
a.a screenshot of a notification that the applicant had been awarded an “Academic Excellence Award in Bachelor of Business” for the academic year 2024; and
b.a screenshot of the applicant’s “Academic Final Results” up to and including Trimester 3, 2024 for her Bachelor of Business.
The applicant’s evidence at the hearing was that she is currently enrolled in Bachelor of Business (Entrepreneurship) and that she has been so enrolled since the course commencement on 30 October 2023.
Post-hearing submissions
At the Tribunal’s request the applicant obtained from her course provider and submitted to the Tribunal a copy of her current Confirmation of Enrolment which certifies that she is currently enrolled in a Bachelor of Business (Entrepreneurship) which commenced on 30 October 2023 and is scheduled for completion on 25 October 2026.
Findings
The evidence of the applicant’s PRISMS record, that she is not currently enrolled in a course of study, stands opposed to her oral evidence at the hearing as corroborated by her documentary evidence in pre- and post-hearing submissions.
The preponderance of the evidence is that the applicant is currently enrolled in a course of study, and the Tribunal makes that finding.
It follows that the Tribunal also finds that the applicant’s PRISMS record is not a reliable record of her course enrolment and study history in Australia and it is not prepared to ground a finding that the applicant was not enrolled for any period of time based upon her PRISMS record.
Condition 8202, as it applies in this case, it requires that the applicant be enrolled in a full-time registered course: 8202(2)(a).
In the present case, the applicant’s visa was cancelled on the basis the applicant was not enrolled in a full-time registered course.
For the reasons stated above there is no reliable evidence before the Tribunal upon which it can make such a finding.
Accordingly, there is no cogent evidence before the Tribunal that the applicant has not complied with condition 8202(2)(a) and it follows that the ground for cancellation is not made out.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.
D Creedon
General Member
Date(s) of hearing: 20 January 2025