1420593 (Migration)

[2015] AATA 3881

1420593 (Migration) [2015] AATA 3881 (10 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jigneshkumar Ashokkumar Shah

CASE NUMBER:  1420593

DIBP REFERENCE(S):  BCC2014/1333313

MEMBER:Antonio Dronjic

DATE:10 December 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 10 December 2015 at 3:57pm

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 a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 29 May 2014. The delegate decided to refuse to grant the visa on 28 November 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 the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because of the applicant’s lack of academic progress, study history, potential circumstances in Australia, immigration history and lack of value of courses to the applicant’s future, the delegate found that the applicant was using the student visa program to circumvent migration programs and was not satisfied the applicant was a genuine applicant for entry and stay as a student and that the applicant intends to stay in Australia only temporarily. The applicant provided a copy of the delegate’s decision with the application for review.

4. On 15 October 2015 the Tribunal wrote to the review applicant advising that it had considered all the material before it relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicant to give oral evidence and present arguments at a hearing on 12 November 2015.

5. On 11 November 2015, the applicant’s representative requested postponement of the scheduled hearing stating that the applicant has been overseas due to his father’s health condition and will return to Australia on 16 November 2015. The presiding member re-scheduled hearing for 10 December 2015 and the Tribunal sent another hearing invitation letter on 17 November 2015. The review applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received.

6. On 3^rd; 7^th and 9^th of December 2015 the Tribunal sent SMS hearing reminders to the applicant’s mobile telephone number.

7. The review applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear or provided any explanation for his non-appearance. In these circumstances, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. The Tribunal notes that under subsection 362B(1) it has a discretion, which is confirmed by subsection 362B(2), to re-schedule the review applicant’s appearance before it, or to delay its decision on the review in order to enable the review applicant’s appearance before it to be re-scheduled. The Tribunal has considered whether it would be appropriate for it to exercise this discretion in the review applicant’s favour but, given the findings set out below, the Tribunal determined that in the circumstances of this particular case there would be no value in doing so. 

9. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. The Tribunal also considered whether, in the circumstances of this case, the evidence that the visa applicant meets cl.572.223 (1)(a) is likely to be forthcoming, whether the review applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

   [1] [2002] FCA 617

   [2] [2012] FMCA 28

10. The Tribunal has had regard to the fact that the visa application was refused by the Department on 28 November 2014. The review applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the review applicant has been aware for approximately 12 months that the visa application was refused because the Department had found that the visa applicant did not satisfy cl.572.223(1)(a) and that the review applicant had a fair opportunity to provide the relevant information.

11. In addition, with its hearing invitation letter, the Tribunal invited the applicant to provide all documents the applicant intends to rely on to establish that the applicant meets the criteria for the visa at least 7 days before the hearing date. He had failed to do so.

12. Accordingly the Tribunal decided not to postpone its decision-making any further to allow the review applicant additional time in which to demonstrate that the visa applicant meets the requirements cl.572.223 (1)(a).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

15. 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)     …

16. 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.

17. 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.

18. I have had regard to the material on the Departmental file and contained in the decision record. I note from the decision record that the delegate has identified that:

    ·The applicant arrived in Australia on 12 December 2008;

    ·That the applicant applied for the current visa on 29 May 2014;

    ·PRISMS indicate that the applicant has been enrolled into the following courses:

    General English;

    Bachelor of Applied Science;

    Certificate III in Bricklaying;

    Diploma in Building and Construction (Building);

    Diploma in Building and Construction (Management);

    Advanced Diploma in Management;

    Certificate III and IV in Hospitality (Commercial Cookery);

    Diploma in Hospitality; and

    Advanced Diploma of Hospitality

19. The PRISMS indicated that the applicant completed Certificate III in Bricklaying, Diploma in Building and Construction, Advanced Diploma in Management and Certificate III in Hospitality. The PRISMS further indicated to the delegate that the applicant’s current enrolment in Hospitality is unrelated to his previous studies in building and construction fields.

20. The applicant has failed to provide any submissions or documentary evidence in support of his application to the Tribunal. I invited him to appear before me and provide additional evidence in support of his review application. He chose not to attend a hearing to discuss these matters and my concerns.

21. On the basis of the information before me I find that the applicant has changed career courses from several unrelated fields, without satisfactory explanation. On the basis of the information before me I find that the applicant has not provided any clear or adequate reason for why he wishes to study the proposed courses, or how these courses will fit within his career plan or lead to further remuneration in his home country or a third country. I have formed the view that the applicant has undertaken and now proposes to further undertake relatively short and inexpensive courses for the purpose of maintaining ongoing residence in Australia.

22. The applicant has not provided to the Tribunal any further information to indicate that he is a genuine applicant for temporary entry. When I weight the information before me it appears that there is a strong likelihood that the applicant is using the student visa program to circumvent migration programs and maintain residence in Australia and that he is neither a genuine applicant for entry and stay as a student nor he intends to stay in Australia only temporarily.

23. The applicant has not availed himself of the opportunity to discuss these concerns, and on the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

24. The Tribunal has found the applicant 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 the applicant 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 the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    Antonio Dronjic
    Member