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

1. 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.

2. 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.

3. 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.

4. 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

5. 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?

6. 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]).

7. 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.

8. 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.

9. The applicant responded to the NOICC letter and his evidence and submissions have been discussed below. However, after considering the evidence, the Department delegate noted:

   ·     The applicant had failed to complete any course of study since the grant of his Student visa on 27 September 2013;

   ·     Prior to the commencement of the applicant’s Diploma course on 8 August 2016, his last confirmed date of study was 19 June 2015 (which the Tribunal believes to be a significant study gap of over 12 months).

   ·     At the time of the delegate’s decision, the applicant did not hold a valid enrolment in a higher education level course as required by the conditions of his Student visa.

   ·     Though without more this is not significant for the case, the applicant had not maintained the study plan he had outlined during the application for his Student visa. 

   ·     The delegate then noted that Student visas are granted for the purposes of allowing non-citizens to travel to and reside in Australia for the purposes of study at an appropriate level and this was the “principal basis for the grant of his Student visa and that it was expected of a genuine student”;

   ·     The delegate then noted that the applicant’s lack of academic progress over a substantial period of time while in Australia was an indication he was not a genuine student.

10. When discussed at hearing, amongst other things the Nepalese applicant said he missed his family when he arrived in Australia, he was depressed (though no corroborating medical evidence was lodged and neither was it claimed he sought any medical or other assistance); and he initially commenced the Bachelor degree but was not able to continue that course. He commenced the Certificate IV in Programming on 14 July 2014 but did not like that course. He again commenced a Certificate IV in Programming on 13 April 2015 but believed he knew more than his teacher and then he ceased studying. He then returned to study an Advanced Diploma of Business and commenced on 8 August 2016. However, at hearing he said he also did not like that course and he ceased studying after around two weeks; and some six weeks later he received the Department NOICC letter.

11. Therefore, and as conceded at hearing, the applicant had failed to complete any course of study in Australia since the grant of his Student visa on 27 September 2013.

12. 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

13. 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’.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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).

19. 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]

20. The applicant then said his circumstances changed when he met someone who understood his situation and gave him encouragement to continue his studies (this was a friend he worked with at a fast food store). On 22 August 2016 he obtained his confirmation of enrolment to undertake an Advanced Diploma of Business (but as discussed above, the applicant ceased that course after two weeks). The now 25 year old applicant wants another chance to continue with his studies.

21. That being said, notwithstanding the applicant’s claimed inability to study or successfully complete any course in Australia between 2013 and 2018, the applicant was able to continue to work from shortly after his arrival, until his Student visa was cancelled by the delegate on 25 October 2016. The Tribunal is therefore not satisfied, that the applicant’s claimed (ie) missing his parents, depression, the Nepalese earthquake, or his apparent inability to find a course in Australia that he wished to study, have prevented him from studying in Australia.

22. The Tribunal has no evidence the applicant has been unco-operative with either the Department or the Tribunal. The Tribunal has no evidence that any other persons visa would or may be cancelled if the applicant’s visa is cancelled. The Tribunal has no evidence that Australia’s international obligations would or may be breached if the applicant’s visa is cancelled.

23. Net, at hearing the applicant said he had formed a relationship with a Nepalese citizen who was in Australia on a Student visa that she had obtained independent of the applicant (she was studying to be a nurse). This relationship had commenced in early 2017 and apart from almost splitting up in April 2017, at hearing the applicant said they had resided together for around 12 months. The Tribunal therefore accepts that if the applicant’s visa is cancelled, he may be separated (at least temporarily) from his partner. He also said (words to the effect), his partner had assisted him to cease gambling.

24. However, the purpose of the grant of a Student visa includes allowing non-citizens to study in a Commonwealth Register of Institutions and Courses for Overseas Students course, and the applicant has failed to satisfy the Tribunal that he intends to re-engage in studying in an appropriate course in Australia.

25. After considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

26. The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.

    Mr S Norman
    Member

    
    

    ATTACHMENT – 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.