Gunawan (Migration) - [2018] AATA 5461

Gunawan (Migration) [2018] AATA 5461 (16 November 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr I Kadek Eko Juliyadi Gunawan
CASE NUMBER:  1619903
HOME AFFAIRS REFERENCE(S):           BCC2016/2972189
MEMBER:Justin Owen
DATE:16 November 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 16 November 2018 at 11:26am

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – ground for cancellation – genuine student – academic record – completed only a two month course since grant of visa – lengthy period of not studying – failure to maintain enrolment – consideration of discretion – employment history – working two to three days a week – sending money home to parents in Indonesia – commitment to study – non-compliance with visa conditions – psychological report – depression and anxiety – broke up with girlfriend – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43; Schedule 8, Condition 8202
CASES
MIMA v Hou [2002] FCA 574

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 21 November 2016 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(fa)(i) on the basis that it appeared that the applicant’s primary purpose for holding a visa was not for the purpose of study and he was not, or likely not to be, a genuine student. 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 12 November 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
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 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)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gunawan (Migration)

Details

AGLC: Gunawan (Migration) [2018] AATA 5461
Case: [2018] AATA 5461
Decision Date: 16 November 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mr. Gunawan against the cancellation of his Subclass 573 Higher Education Sector visa. The Minister had cancelled the visa under section 116(1)(fa)(i) of the Migration Act 1958 (Cth), on the grounds that Mr. Gunawan was not, or was likely not to be, a genuine student. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the ground for cancellation existed and, if so, whether the discretion to cancel the visa should be exercised.

The Tribunal was required to consider whether Mr. Gunawan was a genuine student, as defined by section 116(1)(fa)(i) of the Act, and whether his conduct, including omissions, was not contemplated by the visa. This involved assessing whether his primary purpose for holding the visa was for study, and whether he had genuinely engaged in academic pursuits. The Tribunal also had to consider the prescribed matters under regulation 2.43 of the Migration Regulations 1994 (Cth) when determining the existence of the cancellation ground.

The Tribunal found that the ground for cancellation was made out. Mr. Gunawan had been in Australia for approximately two and a half years but had only completed a two-month General English course. PRISMS records indicated he had not studied for nineteen months and was not enrolled for twelve months. He conceded that he had not attended any classes for a Diploma of Business course commenced in September 2016, and his enrolment had subsequently been cancelled. He also admitted to not being enrolled in a registered course since 2017. The Tribunal considered the purpose of a student visa to be for study and concluded that Mr. Gunawan's prolonged periods of non-study and non-enrolment demonstrated he was not a genuine student.

Having affirmed the existence of the cancellation ground, the Tribunal exercised its discretion and affirmed the decision to cancel Mr. Gunawan's visa. The Tribunal concluded that, considering all the circumstances, the visa should be cancelled.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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)(fa)(i). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.Does the ground for cancellation exist? A visa may be cancelled under s.116(1)(fa)(i) if the Minister is satisfied that the holder of a Student visa is not, or is likely not to be, a genuine student. Alternatively, it may be cancelled under s.116(1)(fa)(ii) if the Student visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa. In MIMA v Hou [2002] FCA 574, the Court held that the ‘genuine student’ concept in section 116(1)(fa)(i) is ‘directed to circumstances where a student visa holder has been in literal compliance with the visa conditions… yet has not conducted him or herself as a genuine student for instance in relation to behaviour at lecturers [sic], and is generally occupying a place in a tertiary institution which could well or potentially be taken up by a genuine student’ (per Conti J at [32]). For matters where the notice of proposed cancellation under s.119 was sent on or after 27 March 2010, there are prescribed matters to which the decision-maker may have regard in determining whether the ground for cancellation under s.116(1)(fa) exists: s.116(1A), r.2.43(1C) and (1D) of the Migration Regulations 1994 (the Regulations). The prescribed matters are set out in the attachment to this decision. The Tribunal notes from the decision record the applicant supplied the Tribunal that on 2 November 2016 the applicant was notified of the Department’s intention to consider cancellation and invited to respond in writing. The decision record states that on 9 November 2016 the applicant wrote to the delegate in response to the Department’s NOICC where he did not dispute the grounds for cancellation. The decision record states that the grounds for cancellation were under s.116(1)(fa)(i) because it appeared that the applicant’s primary purpose for holding a student visa was not for the purpose of study and he was not, or likely not to be, a genuine student. The Tribunal at the hearing noted from the decision record that the applicant had been in Australia for two and half years but had only completed in that time a two month course in General English. At the hearing the Tribunal asked the applicant if that was correct. The applicant agreed it was. The Tribunal noted that the decision record the applicant supplied stated that PRISMS records indicated that he did not study for a period of nineteen months and was not enrolled for a period of twelve months. The Tribunal asked if this was correct. The applicant conceded it was the case.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelledDECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.Justin OwenSenior MemberATTACHMENT – Extract from r.2.43 of the Migration Regulations 1994…(1C)For subsection 116(1A) of the Act, the Minister may have regard to the matter mentioned in subregulation (1D) in determining whether he or she is satisfied as mentioned in paragraph 116(1)(fa) of the Act.(1D)For subregulation (1C), the matter is that participation in a course of study by the holder of a student visa has been deferred or temporarily suspended by the provider of the course of study:(a)because of the conduct of the holder; or(b)because of the circumstances of the holder, other than compassionate or compelling circumstances; or(c)because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; or(d)on the basis of evidence or a document given to the provider about the holder’s circumstances, if the Minister is satisfied that the evidence or document is fraudulent or misrepresents the holder’s circumstances.

Ratio Decidendi

Legal Principle Established

For these reasons, the Tribunal is satisfied that the ground for cancellation in s.116(1(fa)(i) 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 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 Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The Tribunal considers that the purpose of a student visa is to enable the visa holder to study in Australia. The primary decision record indicates that PRISMS evidence available to the Department indicated that since the grant of his 573 Student visa the applicant had been in Australia for approximately two years and six months but had only completed a two-month General English course. PRISMS also indicated, according to the decision record the applicant supplied the Tribunal, the applicant did not study for a period of nineteen months and was not enrolled for a period of twelve months. In oral evidence to the Tribunal the applicant conceded that since the cancellation of his Student visa two years ago, he had not attended any classes for the Diploma of Business he commenced in September 2016 and his enrolment had subsequently been cancelled. The Tribunal has considered the purpose of the applicant’s travel to and stay in Australia. The Tribunal notes from the decision record that the applicant was granted a 573 Higher Education Sector visa on 4 March 2014 in order to study a General English course between 24 March 2014 and 30 May 2014 at Global Education & Tourism Group Pty Ltd and a Bachelor of Business from 28 July 2014 to 21 July 2017 at the Australian Institute of Higher Education Pty Ltd (AIH). The PRISMS record indicates that the applicant was found not to meet the entry requirements for the Bachelor of Business and the Confirmation of Enrolment was cancelled on 25 March 2014. On this date the Australian Institute of Commerce & Language (AICL) approved a CoE for a Diploma of Business course from 14 July 2014 until 14 July 2015 whilst AIH approved a Bachelor of Business course due to commence 27 July 2015. The decision record states that PRIMS indicated that after finishing the two-month General English course the applicant commenced a Diploma of Business on 14 July 2014 but was granted a deferral for two months for medical treatment between 2 February 2015 and 2 April 2015. AICL then approved another Diploma of Business course due to commence 20 April 2015. The applicant departed Australia for about five weeks in January 2015 according to the decision record. He returned in February 2015 but did not commence the Diploma of Business course with AICL and his CoE was cancelled for non-commencement of studies on 10 June 2015. The decision record states that PRISMS also indicates that the applicant did not commence the Bachelor of Business course with AIH that was due to commence 27 July 2015. His CoE was cancelled by AIH for non-commencement of studies on 10 August 2015. The decision record stated that the applicant, according to the PRISMS records commenced a Diploma of Business course with the Sydney Metro College on 26 September 2016. The applicant in oral evidence however to the Tribunal confirmed in oral evidence that after he paid fees and enrolled but subsequently did not attend any classes for this course and his enrolment had been cancelled. The applicant conceded he had not been enrolled in a registered course since 2017.