Kuikel (Migration)

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.