1411467 (Migration)

[2015] AATA 3026

1411467 (Migration) [2015] AATA 3026 (7 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Attique Khalid

CASE NUMBER:  1411467

DIBP REFERENCE(S):  BCC2014/747038

MEMBER:Tim Connellan

DATE:7 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 07 July 2015 at 5:13pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant, Mr Attique Khalid a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Khalid applied to the Department of Immigration for the visa on 14 March 2014. The delegate decided to refuse to grant the visa on 9 June 2014. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because Mr Khalid did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because he was not satisfied Mr Khalid was a genuine student.

4. Mr Khalid appeared before the Tribunal via telephone on 19 February 2015 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   The Hearing
   
   

6. Mr Khalid told the Tribunal he had read and understood the primary decision to refuse his visa application which he believed had been made because it was found he was not a genuine student.

7. When asked why he believed that decision should be reviewed he said he believed he had been in the wrong place but had been trying his best and had provided all records of the studies he had undertaken.

8. The Tribunal discussed Mr Khalid’s study history.

9. When asked why he had come to Australia, he said he that having completed school where he had studied engineering, he intended going to go to the UK, but for a reason he did not understand his father had spoken with an agent who enrolled him in the wrong courses in subjects that he did not understand in Australia.

10. The Tribunal noted that with the hearing invitation he had been invited to provide a range of evidence including evidence of all his past studies in Australia. What had been provided was evidence of enrolment in a Diploma of Management at Kingston and a Diploma of IT at Curtin University. He said these were the courses he had been enrolled in by the agent. The Tribunal observed he had also been enrolled in a Diploma of Advertising course which he said he did not study.

11. Mr Khalid said he believed the major issue was GTE (Genuine Temporary Entrant) and that’s what he was required to provide.

12. The Tribunal told Mr Khalid it was aware of what had been requested and referred to the invitation letter.

13. He said he studied the Diploma of Management and the Diploma of IT at Curtin University for 3 months.

14. The Tribunal observed that the academic transcript of the Diploma he provided showed he had failed all 6 subjects; managing to score 6% in Software Technology, and in the others, 13% 14% 17% 14% and 32%. Mr Khalid agreed they were dismal results.

15. Following those studies he went to Cambridge International College to study Business Management and Management. He said he studied a Diploma of Marketing or Business Management for 6 months. When asked why he had enrolled in these studies, he responded that initially he had attempted to do a Diploma of Marketing and Commerce at Curtin but it was difficult because he came from an engineering background and did not understand the subject matter.

16. When asked why he enrolled in studies he did not understand, he said he wanted to enrol in engineering and was told that it was not currently available. To avoid having a study gap he enrolled in a Diploma of Business at World College with the intention of enrolling in Automotive in a couple of months. He was later told they were not getting the Automotive at their college and he found it was only available in Melbourne.

17. Mr Khalid agreed that the Certificate III in Automotive Mechanical Technology in which he enrolled was scheduled to commence on 15 March 2011. The Tribunal told Mr Khalid it was keen to understand what studies he had done in the 3 years between his arrival in Australia in February 2008 and March 2011.

18. He said he had studied two Diplomas at Curtin University, a Diploma of IT and a Diploma of Commerce, which he said was for more than 3 months more like 6 or 7 months.

19. He suggested these studies explained the period up until approximately August 2008, after which he went to Cambridge International College where he studied a Diploma of Business and Marketing but only completed a few units.

20. The Tribunal repeated that it had requested evidence of all studies, but noted he had not provided any evidence of studies at Cambridge. He said he hadn’t provided any evidence of these studies because he only completed 2 units. He had no evidence of this enrolment or of his studies. When asked again the name of the course he had studied, he asked for time to check his records before coming back and saying it was a Diploma of Advertising in which he was enrolled but never commenced, as having looked at the course outline he was not interested in the subjects. He asked them to enrol him in a Diploma of Business. He said he studied the Diploma of Business for 6 to 7 months but had no evidence of this enrolment.

21. The Tribunal told Mr Khalid that on the evidence presented it appeared he had very significant unexplained study gaps.

22. Mr Khalid then provided a rambling and disjointed outline of his studies stating that after August 2008, his next studies were of a Diploma of Management and a Diploma of Business Management at BTIA and Cambridge but these courses were not completed. He said he then did 2 extra units of business, not Business Management, just the Diploma of Management which he was told would grant him an exemption in an Advanced Diploma of Management.

23. The Tribunal told Mr Khalid that his claimed studies were not supported by any evidence and it appeared there was a study gap between August 2008 and March 2010 when he started a Diploma of Business at World College.

24. The Tribunal referred to the primary decision, a copy of which Mr Khalid had provided with his review application, noting that in assessing his application he was required to provide evidence of his financial capacity. He claimed to be funded by his parents and grandparents. The Tribunal noted the primary decision stated he had failed to demonstrate that any funding had been provided from his parents or grandparents and that on at least 2 occasions he had enrolments cancelled due to non-payment of tuition fees which the Tribunal advised raised serious questions. The fact he had requested a fee reduction for this review application compounded the concerns. He said his circumstances had now changed.

25. Mr Khalid said that in 2012 he was required to undergo major surgery and was given a holiday from having to attend classes as he was not in a condition to do his studies but tried to do his best. That was one thing, the other being that the bank instalments were dishonoured and so his CoE was cancelled. In addition when he was changing his studies from Oil and Gas to Civil Engineering he asked to be put into Civil and Construction Design and he was issued a CoE for a Diploma of Civil Engineering. He said he had provided medical evidence. The Tribunal told Mr Khalid that no medical evidence had been received.

26. The Tribunal told Mr Khalid it was concerned he had a major study gap. He said he agreed there was a major study gap but recently he had been studying satisfactorily. He said the early study gaps were because he was trying to work out what to do and he had been poorly advised.

27. When asked what he intended to do at the end of his studies in Australia, he said he would probably go home to get a job in the business that he had done. When asked what sort of a job he might get, he said he initially he thought about oil and gas but now that field is going down and so he thought civil engineering was the best option and he may get a job as a design draughtsperson.

28. The Tribunal suggested his answer indicated he did not have any firm study programme that led to a defined career path.

29. When asked the purpose of this visa application and what courses he wished to finish before returning home, he said a Diploma and Advanced Diploma of Civil and Construction Design.

30. The Tribunal observed he had been enrolled in a Diploma of Civil and Construction Design which he had initially commenced on 22 July 2013 but that enrolment had been cancelled in February 2014 for non-payment of fees. He subsequently enrolled in the same course which was scheduled for completion in June 2014. He then enrolled in an Advanced Diploma of Engineering but those CoE’s had been cancelled. He claimed to have provided further CoE’s however the only evidence of enrolment before the Tribunal was in an Advanced Diploma of Engineering, not Civil and Construction Design. Mr Khalid said this was a mistake of the College and the course had recently undergone a name change. He said the current course went until June 2015 following which he intended to do a Bachelor degree at Curtin University.

31. In response to the question “What courses have you successfully completed in your 7 years in Australia? “ he said he had completed a Certificate III in Automotive Management which the Tribunal noted was a one-year course.

32. The Tribunal told Mr Khalid that his study history led the Tribunal to share the concerns of the delegate in the primary decision that it was not that of a genuine student.

33. The Tribunal noted that he completed the Certificate III in Automotive Management in March 2012. He said that in his study of the Advanced Diploma of Engineering, he had completed sufficient units to be granted a Diploma but because he had changed address he believed he had not received the certificate.

34. The Tribunal told Mr Khalid that his invitation to the hearing having been sent more than two months before the hearing date in which he had been asked to provide evidence of his studies meant he had been given ample time and opportunities to provide the required evidence.

35. When asked what hardship he or his family might suffer if his visa was not granted, he said it was hard to describe but he would not have completed his studies which he really wanted to do. He said things were difficult in his home country at the moment and it would be difficult to complete his studies there if he had to go home.

36. He said there was no further evidence he wished to present.

    Conclusions

37. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572. The

38. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

    (1)      The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

    (a)      the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

    (i)       the applicant’s circumstances; and

    (ii)       the applicant’s immigration history; and

    (iii)      if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and

    (iv)      any other relevant matter; and

    (b)      …

    In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa applications, made under s.499 of the Act. This Direction requires the Tribunal to have regard to a number of specified factors in relation to:

    ·the applicant’s circumstances in their home country, potential circumstances in Australia, and the value of the course to the applicant’s future;

    ·the applicant’s immigration history, including previous applications for an Australian visa or for visas to other countries, and previous travel to Australia or other countries;

    ·if the applicant is a minor, the intentions of a parent, legal guardian or spouse of the applicant; and

    ·any other relevant information provided by the applicant, or information otherwise available to the decision maker, including information that may be either beneficial or unfavourable to the applicant.

39. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

40. Having been in Australia for more than 7 years, Mr Khalid’s only successfully completed studies is a one-year Certificate III course in Automotive Management.  Mr Khalid agreed that there were significant study gaps for which he provided no satisfactory explanation. The Tribunal does not believe his study history to be that of a genuine student.

41. Mr Khalid generally provided rambling answers that did not address the questions asked but led to irrelevant dissertations leading the Tribunal to find him to be less than a reliable witness of truth.

42. Mr Khalid’s evidence provided no indication of a study plan that was leading to any future career or any defined value to his future.

43. Other than vague references to the fact that it was difficult at home at the moment, Mr Khalid provided no evidence of hardship that might be suffered should his visa application be refused or any reason he could not return home.

44. On the basis of the above, and having considered Mr Khalid’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that Mr Khalid intends genuinely to stay in Australia temporarily. Accordingly, Mr Khalid does not meet cl.572.223(1)(a).

45. The Tribunal has found Mr Khalid does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that Mr Khalid does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests Mr Khalid meets the prescribed criteria for that subclass. As the Tribunal has found that Mr Khalid does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    Decision

46. The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

    Tim Connellan

    
    

    Member