Suwal (Migration) - [2019] AATA 3882

Suwal (Migration) [2019] AATA 3882 (12 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Rukesh Suwal
CASE NUMBER:  1719870
HOME AFFAIRS REFERENCE(S):           BCC2017/2013965
MEMBER:Stephen Conwell
DATE:12 June 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 573 Higher Education Sector visa.
Statement made on 12 June 2019 at 6:06pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – genuine student – enrolment in a registered course – applicant ceased enrolment – non-payment of fees – unsatisfactory academic progress – Nepal 2015 earthquake – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 119
Migration Regulations 1994, 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 23 August 2017 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 delegate cancelled the visa under s.116(1)(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 1 May 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
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)(i). 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 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…

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 Suwal (Migration)

Details

AGLC: Suwal (Migration) [2019] AATA 3882
Case: [2019] AATA 3882
Decision Date: 12 June 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the cancellation of the applicant's Student (Temporary) (Class TU) visa, Subclass 573 Higher Education Sector. The applicant had been granted the visa to study in Australia, but the Minister had cancelled it on the grounds that the applicant was not, or was likely not to be, 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, and if so, whether the discretion to cancel the visa should be exercised. The legal issue revolved around the interpretation of "genuine student" in the context of the applicant's academic progress and enrolment history.

The Tribunal found that the applicant had failed to complete any course of study since being granted the visa, had experienced significant periods of non-study, and had repeatedly had his enrolment cancelled due to non-payment of fees. While acknowledging the applicant's submission regarding difficulties adjusting to life in Australia and the impact of the Nepal earthquake, the Tribunal found these circumstances were not beyond his control and did not constitute extenuating circumstances. The Tribunal applied the principles established in *MIMA v Hou* [2002] FCA 574, considering the applicant's overall conduct and engagement with his studies.

The Tribunal affirmed the decision to cancel the applicant's visa, concluding that the weight of the considerations supported 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.116(1)(fa)(i). 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 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 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 set out in the attachment to this decision. The applicant was granted a Student (Temporary) (class TU) Higher Education Sector (subclass 573) visa on 21 February 2014 and entered Australia on 28 February 2014. His original course of study comprised of a package of subjects commencing with a Certificate IV Tertiary Preparation Program (TPP) leading to a Diploma of Commerce and then a Bachelor of Commerce. By Notice of Intention to Consider Cancellation (NOICC) of that visa dated 2 August 2017, the applicant was advised that information before the Department delegate indicated he is not, or is likely not, to be a genuine student. The applicant responded to the NOICC letter by a written statement dated 8 August 2017 which is quoted at length in the delegate’s decision record. However, after considering the evidence, the delegate noted: · Information on the Provider Registration and International Student Management System (PRISMS), indicated that the applicant commenced the TPP course at Deakin College on 6 February 2014 but ceased study approximately 6 months later on 6 February 2015, with Deakin College recording his unsatisfactory course progress. Consequently his enrolment in the Diploma of Commerce was cancelled.· The applicant then enrolled in a Certificate IV in Business at Pass Global commencing on 11 May 2015 but ceased study a month later on 28 June 2015.· The applicant enrolled in a Bachelor of Professional Accounting at Holmes Institute, commencing this course on 17 August 2015 but however his enrolment was cancelled on 30 October 2015 due to non-payment of fees.· The applicant re-enrolled in a Bachelor of Professional Accounting at Holmes Institute, commencing this course on 30 November 2015 but however his enrolment was cancelled on 24 June 2016, again due to non-payment of fees.· The applicant re-enrolled in a Bachelor of Professional Accounting at Holmes Institute, for a third time, commencing this course on 8 August 2016. His enrolment was cancelled some two months later, on 22 October 2016, once again due to non-payment of fees.· The applicant then enrolled in a Bachelor of Business (Accounting) at Acknowledge Education, commencing study on 24 July 2017. He was issued with a NOICC on 2 August 2017. After considering the applicant’s response to the NOICC on 8 August 2017, the Department cancelled his Student visa on 25 August 2017.· Since entering Australia on 28 February 2014, the applicant has never successfully completed any of the courses outlined in his study plan he advised on his TU 573Student visa application.· Student visas (subclass 570 – 574) are granted for the purpose of studying towards, and achieving, an educational qualification in Australia. That the applicant would give priority to his ongoing enrolment, and participation, in our CRICOS registered course of study was the principality basis for the grant of his visa, and is expected of any genuine student.· The applicant’s lack of academic progress, extensive study gaps of non-studying at the appropriate level over a substantial period of time, whilst nonetheless choosing to remain in Australia on a visa solely existing for his engagement in study, indicated that the applicant is not a genuine student.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the weight of the considerations outlined above support the cancellation of the applicant’s visa. 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. Stephen ConwellMemberATTACHMENT – 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

As conceded at hearing, the applicant had failed to complete any course of study in Australia since the grant of his Student visa on 21 February 2014. His lack of academic progress and extensive periods of non-study (which he concedes are substantial) whilst remaining onshore suggest to the Tribunal that the applicant is not a genuine student. 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 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 purpose of the visa holder's travel to and stay in Australia The Tribunal is satisfied that the applicant travelled to Australia with the original purpose being to study higher education. The Tribunal notes that the applicant has failed to complete any course of study in Australia since the grant of his Student visa on 21 February 2014. The Tribunal finds this consideration weighs against the applicant.The extent of compliance with the visa conditions The applicant was granted a student visa subclass 573 to undertake a course of higher education study, and to achieve a qualification from an Australian educational institution. As a visa holder of a Subclass 573 visa, the applicant is required to comply with all visa conditions including maintaining enrolment in a registered course of study, attending satisfactorily, and progressing satisfactorily. The Tribunal notes the applicant’s poor study history and in particular his failure to complete any course of study in Australia since the grant of his Student visa on 21 February 2014. The Tribunal has no evidence before it that the applicant has not complied with other visa conditions. It gives this some weight considers in his favour.The circumstances in which the ground for cancellation arose: decision-makers should consider whether there were any extenuating circumstances beyond the visa holder's control that led to the grounds existing. The Tribunal notes the applicant’s evidence that his lack of application to his studies and poor attendance initially arose because of his difficulty adjusting to life and study in Australia. Later, the impact of the earthquake in Nepal upon his family and others, caused him distress so he did not apply himself to his studies. The applicant offered no evidence that he had sought the assistance of his education providers for his difficulties in adjusting to life and study in Australia. There is no evidence that he sought a deferral of his studies in response to these challenges. The Tribunal considers the applicant’s circumstances were not such that they might be said to be beyond his control, nor are they extenuating circumstances.