Kuikel (Migration) - [2018] AATA 1769

Kuikel (Migration) [2018] AATA 1769 (20 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anish Kuikel
CASE NUMBER:  1618176
DIBP REFERENCE(S):  BCC2016/2874946
MEMBER:Mr S Norman
DATE:20 April 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 20 April 2018 at 3:05pm

CATCHWORDS
Migration – Cancellation – Student (Temporary) (Class TU) visa – Subclass 573 (Higher Education Sector) – Whether the ground for cancellation exists – Whether the applicant is a genuine student – Significant time spent not studying – Lack of academic progress – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 119, 189, 198
Migration Regulations 1994 (Cth), r 2.43, Schedule 4, PIC 4013
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 25 October 2016 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 573 Higher Education Sector visa under s.116 of the Migration Act 1958 (the Act). The applicant lodged the Department delegate’s decision with the Tribunal.
The delegate cancelled the visa under s.1161)(fa)(i) of the Act on the basis that the applicant was determined 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 20 April 2018 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.
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.1161)(fa)(i) of the Act. 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 or the Tribunal 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…

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 Kuikel (Migration)

Details

AGLC: Kuikel (Migration) [2018] AATA 1769
Case: [2018] AATA 1769
Decision Date: 20 April 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mr Kuikel, who sought to have the cancellation of his Student (Temporary) (Class TU) visa, subclass 573 (Higher Education Sector), set aside. The Minister had cancelled the visa on the grounds that Mr Kuikel was not a genuine student.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(fa)(i) of the Migration Act 1958 (Cth) was made out, specifically whether Mr Kuikel was a genuine student. If this ground was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account all relevant circumstances.

The Tribunal found that the ground for cancellation existed. It noted that Mr Kuikel had enrolled in multiple courses of study but had failed to maintain enrolment or make academic progress in any of them since arriving in Australia in October 2013. His enrolments were repeatedly cancelled due to non-attendance. The Tribunal applied the principles from *MIMA v Hou* [2002] FCA 574, which interpret the "genuine student" requirement as extending beyond mere literal compliance with visa conditions to encompass actual engagement with studies. The Tribunal also considered prescribed matters under regulation 2.43 of the Migration Regulations 1994, which include deferral or suspension of study due to the student's conduct or circumstances not deemed compassionate or compelling. Despite Mr Kuikel's stated reasons for his lack of progress, including homesickness and the earthquake in Nepal, the Tribunal was not satisfied that his present purpose for residing in Australia was to study.

The Tribunal affirmed the decision to cancel Mr Kuikel's visa. It concluded that the failure to maintain enrolment for over 12 months was substantial and that Mr Kuikel's present purpose was not to study. While acknowledging potential hardship, the Tribunal found that the circumstances did not warrant setting aside the cancellation.

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.1161)(fa)(i) of the Act. 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 or the Tribunal 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 Minister or Tribunal 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 applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 27 September 2013. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 14 October 2016, the applicant was advised that information before the Department delegate indicated he is not, or is likely not, to be a genuine student.· The delegate noted the applicant had initially applied to study in Australia for a Bachelor of Information Technology (between 28 October 2013 - 7 October 2016). Information on the Provider Registration and International Student Management System (PRISMS), indicated that on 28 October 2013 the applicant commenced the Bachelor degree at Central Queensland University. However, he ceased attending classes after 6 August 2014 and his enrolment was consequentially cancelled on 2 September 2014 as he had failed to re-enrol for further classes. · On 30 May 2014, the applicant obtained a package enrolment including a Certificate IV in Programming; and a Diploma of Software Development. The applicant commenced the Certificate IV in Programming on 14 July 2014. However his enrolment was cancelled on 27 January 2015 as he did not attend any classes after 19 December 2014. As a consequence his enrolment for the Diploma was cancelled on 22 April 2015.· On 22 April 2015, the applicant obtained a package enrolment including a Certificate IV in Programming; and a Diploma of Software Development. The applicant commenced classes for the Certificate IV in Programming on 13 April 2015, however his enrolment was cancelled on 4 August 2015 as he did not attend any classes after 19 June 2015. As a consequence his enrolment for the Diploma was also cancelled on 4 August 2015. · PRISMS indicated that on 22 August 2016, the applicant enrolled in an Advanced Diploma of Business and classes commenced on 8 August 2016. · Further information on PRISMS indicated the applicant has had other approved COE’s which were subsequently cancelled. · At the time of the Department delegate’s decision, the records indicated the applicant had not travelled outside Australia since arriving on 20 October 2013.

Decision

Reasons for decision

After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled. DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa. Mr S NormanMemberATTACHMENT – 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.1161)(fa)(i) of the Act exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa. However, in considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including but not limited to matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’. The applicant said his intention in travelling to and residing in Australia was for the purposes of study. However, the applicant had failed to maintain enrolment in a registered course of study for some 12 months prior to the delegate’s decision. He had also failed to complete any course of study in Australia since the grant of his Student visa on 27 September 2013. Based on all the findings herein, the Tribunal is not satisfied the applicant’s present purpose for residing in Australia is to study. Regarding the extent of compliance with visa conditions, the Tribunal believes the failure to maintain enrolment in an appropriate course of study for over 12 months is substantial. Regarding any hardship the applicant or his family may suffer if his visa is cancelled, the Tribunal accepts the applicant would be (words to the effect) embarrassed if he had to return to Nepal; and that his parents would be disappointed in him. At hearing, he also said he falsely told his parents he was still studying after his Student visa was cancelled so they would send him approximately AUD$5.000 (his parents were later told by a friend that the applicant’s Student visa was cancelled). When asked, the applicant also said that if he had to return to Nepal, he could study there. Next, if the applicant’s visa is cancelled the Tribunal accepts that he or his family may be subject to some financial hardship. He would also then be an unlawful non-citizen and liable to detention under s.189 and removal under s.198 of the Act. However none of the evidence has satisfied the Tribunal the applicant would be subject to indefinite detention; and he could apply for a Bridging visa and be allowed to remain in the community to finalise his affairs prior to departing. The Tribunal also notes that if the applicant’s visa is cancelled he would be subject to s.48 of the Act and he would have limited options to apply for further visas in Australia. He would also be subject to PIC 4013 (meaning he could not be granted a temporary visa for three years from the date of cancellation). Regarding the circumstances giving rise to the cancellation of his Student visa, in his response to the NOICC letter the applicant said[1] he was happy to be granted the Student visa to Australia; after four months of study he missed his parents and felt homesick; he lost self-confidence and could not concentrate on his studies; there was nobody to guide him in Australia; he sought assistance from a (education) consultant in Australia who suggested he study another course (at hearing, he said this was the Diploma of Business); he was not happy with the new course and kept thinking about his parents; he became more depressed (though no claim was made to have sought any assistance). The applicant also said he was “worried” about his family when the big earthquake hit his home country on 25 April 2015 (though as stated at hearing, no claim was made that his parents were injured or had suffered any loss due to the earthquake). He then said as he could not study properly, he decided to discontinue his studies. The country information stated: Economic Overview 2.9 … The [7.9 magnitude] earthquake of April 2015 and the subsequent aftershocks had a negative impact on the economy…. [and] [1] Department file – from folio 36; and from folio 45. [2] “Nepal’s population is 28.9 million”; DFAT Country Information Report, Nepal, 21 April 2016, [2.6]. [3] DFAT Country Information Report, Nepal, 21 April 2016. 2,5 … killed an estimated 8,891[2] people and injured 22,302.[3]