Pudasaini (Migration) - [2020] AATA 1810

Pudasaini (Migration) [2020] AATA 1810 (10 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nitesh Pudasaini
CASE NUMBER:  1911810
HOME AFFAIRS REFERENCE(S):          BCC2016/2874689
MEMBER:David McCulloch
DATE:10 March 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 10 March 2020 at 3:32pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Federal Circuit Court remittal – genuine temporary entrant as student – enrolment in a registered Higher Education course ceased – applicant changed courses frequently – gaps in enrolment – failure to re-enrol for subjects – limited academic progress – Nepal earthquake 2015 – claimed financial hardship – 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

This is an application for review of a decision dated 7 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 applicant is a national of Nepal, born on 28 March 1994. The visa that has been cancelled was granted on 12 August 2013.
On 3 October 2016, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Act. The applicant provided his response to the NOICC on 11 October 2016. On 7 November 2016, the delegate decided to cancel the student visa held by the applicant under s.116(1)(fa) on the basis that the delegate had formed the view that the applicant was not a genuine student.
On 9 November 2016, the applicant applied to the Tribunal for review of the decision. On 8 October 2018, the Tribunal affirmed the decision under review. The applicant applied to the Federal Circuit Court for review of the Tribunal’s decision. On 8 May 2019, the matter was remitted by consent on the basis that the Tribunal failed to consider a psychological report provided by the applicant to the Department on 10 October 2016.
The issues that arise on review are:
1. Does the ground for cancellation exist?
2. If so, should the visa be cancelled?
The applicant appeared before the Tribunal on 5 March 2020 to give evidence and present arguments. The applicant communicated with the Tribunal in English.
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). 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…

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.

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Details

AGLC: Pudasaini (Migration) [2020] AATA 1810
Case: [2020] AATA 1810
Decision Date: 10 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by Nitesh Pudasaini against the decision to cancel his Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The appeal was heard by the Administrative Appeals Tribunal. The core of the dispute revolved around whether Mr. Pudasaini had met the criteria for being a "genuine student" as required by his visa conditions and the relevant provisions of the *Migration Act 1958* (Cth).

The Tribunal was required to determine whether the ground for cancellation under s 116(1)(fa)(i) of the Act, which relates to a student visa holder not being, or likely not to be, a genuine student, was made out. This involved assessing whether Mr. Pudasaini's conduct and study history demonstrated he was genuinely undertaking studies in Australia. The Tribunal also had to consider whether, if the ground for cancellation was established, the discretion to cancel the visa should be exercised, taking into account all relevant circumstances, including those presented by the applicant.

In reaching its decision, the Tribunal considered extensive evidence of Mr. Pudasaini's study history, which revealed a pattern of frequent course changes, cancellations of enrolment, non-commencement of studies, and a lack of academic progress across multiple educational institutions. The Tribunal noted significant periods where Mr. Pudasaini did not hold a valid Confirmation of Enrolment (CoE) or undertake any study, amounting to approximately seventeen months. While Mr. Pudasaini raised issues such as financial hardship and the impact of the Nepal earthquake, the Tribunal was not satisfied that these constituted extenuating circumstances beyond his control that explained his lack of genuine student conduct. The Tribunal applied the principles from *MIMA v Hou* [2002] FCA 574 regarding the "genuine student" concept and had regard to the prescribed matters under reg 2.43 of the *Migration Regulations 1994* concerning deferrals or suspensions of study.

Ultimately, the Tribunal concluded that the ground for cancellation under s 116(1)(fa)(i) was established due to Mr. Pudasaini's failure to act as a genuine student. After weighing the various discretionary factors, including limited hardship to the applicant if the visa remained cancelled against the significant adverse matters related to his study history, the Tribunal affirmed the decision to cancel his visa.

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). 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. 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 s.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:…(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; orb. because of the circumstances of the holder, other than compassionate or compelling circumstances; orc. because of compassionate or compelling circumstances of the holder, if the Minister is satisfied that the circumstances have ceased to exist; ord. 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.Does the ground for cancellation exist? The applicant provided a copy of the delegate’s decision record to the Tribunal which sets out the following information:# Nitesh PUDASAINI applied for a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa which was granted 12 August 2013. When you [the applicant] applied for the visa your study plan was:Certificate IV in Tertiary Preparation Program (TPP) (Confirmation of Enrolment (CoE) 5D0A2419) at Colleges of Business and Technology (WA) Pty Ltd (Curtin College) —06 November 2013 to 27 June 2014.Diploma of Commerce (CoE 5CE83A65) at Colleges of Business and Technology (WA) Pty Ltd (Curtin College) — 14 July 2014 to 26 June 2015.Bachelor of Commerce (CoE 5CE84693) at Curtin University of Technology—05 August 2015 to 30 June 2017.Records in The Provider Registration and International Student Management System (PRISMS) indicate:# On 09 April 2014 Nitesh PUDASAINI's enrolment in the Certificate IV in Tertiary Preparation Program (TPP) was cancelled citing 'student notifies cessation of studies'. Nitesh PUDASAINI's last day of study in this course recorded on PRISMS was 14 February 2014.# Subsequently, on 09 April 2014 Nitesh PUDASAINI's enrolment in the Diploma of Commerce and Bachelor of Commerce was cancelled citing 'non-commencement of studies'.Information provided by Colleges of Business and Technology (WA) Pty Ltd (Curtin College) indicate that Nitesh PUDASAINI had an overall attendance of 84% with seventeen (17) absences. Nitesh PUDASAINI was assessed as not competent in three (3) of the four (4) subjects which he undertook. Nitesh PUDASAINI was provided with one (1) email and three (3) text message reminders to re-enrol.Records in PRISMS indicate:#On 05 March 2014 Nitesh PUDASAINI enrolled in a Diploma of Accounting (CoE 64138696) at Pacific College Pty Ltd—study dates: 05 May 2014 to 05 November 2015.# On 20 October 2014 Nitesh PUDASAINI's enrolment in the Diploma of Accounting (CoE 64138696) was cancelled citing 'student notifies cessation of studies'. Nitesh PUDASAINI's last day of study in this course recorded on PRISMS was 14 September 2014.Information provided by Pacific College Pty Ltd indicate that Nitesh PUDASAINI was issued with nine (9) attendance warning letters and two (2) course progress warning letters. Nitesh PUDASAINI was deemed not yet competent in the six (6) units you undertook. On 07 October 2014 Nitesh PUDASAINI requested a deferment for a semester due to a motorbike crash; however Pacific College Pty Ltd could not consider the request without a medical certificate. On 15 October 2014 Nitesh PUDASAINI was issued a reminder to re-enrol for term IV 2014.Records in PRISMS indicate:# On 27 March 2015 Nitesh PUDASAINI enrolled in a Diploma of Accounting (CoE 70E35E32) at ALIF Australia Pty Ltd (Australis Institute of Technology and Education) — study dates: 21 March 2016 to 25 December 2016.# On 30 March 2015 Nitesh PUDASAINI's enrolment in the Diploma of Accounting (CoE 70E35E32) was cancelled citing 'change to CoE/student details'. It is noted that this was at his request to start the course in April 2015.# Subsequently, on 30 March 2015 Nitesh PUDASAINI enrolled in another Diploma of Accounting (CoE 70F05D85) at ALIF Australia Pty Ltd (Australis Institute of Technology and Education) — study dates: 20 April 2015 to 17 April 2016.# On 29 April 2015 Nitesh PUDASAINI's enrolment in the Diploma of Accounting (CoE 70F05D85) was cancelled citing 'Change to a course in the same sector, gap created either at start or end of course OR the study period of the new CoE is shorter than the original'. It is noted that Nitesh PUDASAINI wished to change to a business course.# On 29 April 2015 Nitesh PUDASAINI enrolled in a Diploma of Business (CoE 71D59028) at ALIF Australia Pty Ltd (Australis Institute of Technology and Education) — study dates: 27 April 2015 to 25 October 2015.Information provided by ALIF Australia Pty Ltd (Australis Institute of Technology and Education) indicate that Nitesh PUDASAINI was deemed not yet competent in the units for the Diploma of Business (CoE 71D59028), therefore he did not complete this course of study. Nitesh PUDASAINI was issued with an academic progress warning email.Records in PRISMS indicate:# On 02 September 2016 Nitesh PUDASAINI enrolled in General English (Beginner to Advanced) (1 to 72 weeks) (CoE 84145218) at Australian Ideal College Pty Ltd. Nitesh PUDASAINI completed this course on 23 September 2016. # On 30 August 2016 Nitesh PUDASAINI enrolled in an Advanced Diploma of Business (COE 83EF4317) at Sydney Metro College Pty Ltd — study dates: 26 September 2016 to 05 March 2017.# Nitesh PUDASAINI is currently studying the Advanced Diploma of Business (CoE 83EF4317).Therefore, departmental records suggest:# Nitesh PUDASAINI did not hold a valid CoE from 20 October 2014 to 27 March 2015 or from 25 October 2015 to 30 August 2016. Furthermore, he did not undertake any study from 14 September 2014 to 27 April 2015 or from 25 October 2015 to 02 September 2016. This indicates that he has not studied for a cumulative period of approximately seventeen (17) months.# Nitesh PUDASAINI is holding a TU573 Higher Education Sector visa ('student visa'), however since 09 April 2014 he has not been enrolled in a bachelor's degree or master's degree course and he has not enrolled in a course of study that is a principal course of a type specified for Subclass 573 visas by the Minister in an instrument made under regulation 1.40A.# Nitesh PUDASAINI has continually changed his enrolment in a registered course of study and either cancelled or failed to re-enrol in his course after the course commencement date.

Decision

Reasons for decision

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.David McCullochMemberATTACHMENT – 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 various claimed extenuating circumstances beyond the applicant’s control as to why the applicant suffered difficulties with his studies are discussed in the previous section as to whether the ground of cancellation is made out. As detailed in that section, the Tribunal is not satisfied that the various claimed issues of mental health issues, funds not being available for study, not realising he could study for significant periods after his visa was cancelled, and drinking and gambling are extenuating circumstances beyond the applicant’s control that reasonably explain or justify him not being a genuine student. The applicant indicates that a hardship to him if the visa remains cancelled and his compelling need to remain in Australia is the fact that he would be denied the ability to progress with a desired enrolment in a Diploma of Business. The Tribunal has credibility concerns as to the genuineness of this desire by the applicant, given his study history in Australia and his recent lack of progression with such a course whilst he has had the legal ability in Australia to study. Even if the Tribunal were to accept some hardship in this respect, it would not outweigh the significant matters adverse to the applicant in the exercise of the Tribunal’s discretion. The applicant indicated that there will be a hardship to him if he returns to Nepal because his family will be very disappointed at his lack of study progress in Australia. The Tribunal accepts some hardship to the applicant in this respect. The Tribunal accepts a hardship to the applicant if the visa remains cancelled in that he would be denied the ability to apply for many other visas onshore. The Tribunal accepts that if the visa remains cancelled, the applicant could be an unlawful noncitizen. However, the Tribunal considers it likely that the applicant would continue to hold a bridging visa, making his status lawful. The applicant indicated in the hearing that there are no children in Australia whose interests would be affected by the cancellation of the visa. The applicant indicated that he does not fear persecution or significant harm on return to Nepal. Therefore Australia’s non‑refoulement obligations are not enlivened in this matter. The Tribunal weighs relevant discretionary factors both adverse and favourable to the applicant. The factors adverse to the applicant are considerable and significant in terms of his lack of study progress in Australia and his breach of various visa conditions for which the Tribunal does not accept there are extenuating circumstances beyond the applicant’s control. The Tribunal accepts that there will be some limited hardship to the applicant if the visa remains cancelled.