Kumar (Migration) - [2019] AATA 6639

Kumar (Migration) [2019] AATA 6639 (5 December 2019)

Corrigendum

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ankush Kumar
CASE NUMBER:  1809087
DIBP REFERENCE(S):  BCC2017/3916943
MEMBER:Jason Pennell
DATE OF DECISION:  5 December 2019
DATE CORRIGENDUM
SIGNED:19 March 2020
PLACE OF DECISION:  Melbourne
AMENDMENT:  The following corrections are made to the decision:

1. The words “Statement made on 5 December 2012 at 12.58 pm” on covering page one should be replaced by the words “Statement made on 5 December 2019 at 12.58 pm”

Jason Pennell
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ankush Kumar
CASE NUMBER:  1809087
HOME AFFAIRS REFERENCE(S):          BCC2017/3916943
MEMBER:Jason Pennell
DATE:5 December 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 5 December 2012 at 12.58 pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – ground for cancellation – genuine student – poor attendance record – non-payment of fees – unsatisfactory course progress – consideration of discretion – purpose of travel and stay – enrolment history – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 116
Migration Regulations 1994 (Cth), r 2.43

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 27 March 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).
2.The delegate cancelled the visa under s.116(1)(fa) of the Act on the basis that the applicant is not or is 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.
3.The applicant appeared before the Tribunal on 4 December 2019 to give evidence and present arguments.
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 grounds set out in s.116(1)(fa) 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?

s.116(1)(fa) - not a genuine student
6.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…

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 Kumar (Migration)

Details

AGLC: Kumar (Migration) [2019] AATA 6639
Case: [2019] AATA 6639
Decision Date: 5 December 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (the Tribunal) considered an appeal by Mr Kumar against the decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his Student (Temporary) (Class TU) visa, subclass 500. The cancellation was based on Mr Kumar's failure to meet the requirements of his visa, specifically concerning his attendance record, non-payment of tuition fees, and unsatisfactory course progress.

The primary legal issue before the Tribunal was whether the Minister's decision to cancel Mr Kumar's visa was justified. This required the Tribunal to determine if the grounds for cancellation were established and, if so, whether the discretion to cancel the visa should have been exercised in Mr Kumar's circumstances. The Tribunal also had to consider the purpose of Mr Kumar's travel and stay in Australia, his enrolment history, and any other relevant factors.

In its reasoning, the Tribunal found that Mr Kumar's poor attendance, outstanding fees, and unsatisfactory academic performance constituted a failure to meet the conditions of his visa. The Tribunal then considered the exercise of discretion, weighing the seriousness of the breaches against Mr Kumar's personal circumstances and the purpose of his visa. Ultimately, the Tribunal concluded that the cancellation of the visa was a reasonable and proportionate response to the established breaches, and therefore affirmed the Minister's decision.

Orders