1504694 (Migration)

[2015] AATA 3551

1504694 (Migration) [2015] AATA 3551 (19 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHRISTOPHER ADIGBO

CASE NUMBER:  1504694

DIBP REFERENCE(S):  BCC2015/412172

MEMBER:Gabrielle Cullen

DATE:19 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 19 October 2015 at 12:53pm

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 6 February 2015. The delegate decided to refuse to grant the visa on 19 March 2015. 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 decided to refuse to grant the visas on 19 February 2015. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(2) of Schedule 2 to the Regulations because he had not provided evidence to meet the English proficiency requirements. The Certificate of Enrolment attached with his application for a student visa referred to the applicant studying a Diploma of Management from 13 April 2015 to 9 April 2016 and an Advance Diploma of Management from 11 April 2016 to 7 April 2017.

4. Movement records indicate that applicant initially arrived in Australia on a student visa on 11 February 2014 valid to 10 February 2015.

5. During the time the applicant has held student visas and to date the evidence from PRISMS indicates he has also been enrolled in an Advanced Diploma of IT from 14 April 2014 to 10 April 2016 but the CoE in this course was cancelled on 15 January 2015 by the applicant.

6. The applicant applied to the Tribunal for review of the delegate’s decision on 7 April 2015.

7. Prior to the hearing the applicant provided documents relating to English proficiency and financial capacity as required by Schedule 5A. In particular he provided an IELTS test dated 23 April 2015 indicating an overall band score of 5.5. He provided a letter from his education provider dated 9 February 2015 indicating he was currently studying an Advanced Diploma of Technology and this commenced on 14 April 2014 and was to finish on 10 April 2015 and provided CoEs relating to a Diploma and Advanced Diploma of Management. He also provided a Certificate from Ghana as to courses completed there and letters of financial support from his brother.

8. He also provided on 14 August 2015 a COE to undertake a Diploma of Business from 7 September 2015 to 15 July 2016.

9. The applicant appeared before the Tribunal on 17 August 2015 to give evidence and present arguments. The Tribunal raised with him that while the delegate made the decision on cl. 573.223(2) as he did not meet the English proficiency requirements, a matter before the Tribunal is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, that he is now subject to as subclass 572 visa as he is now enrolled in a Diploma of Business and outlined the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

10. The applicant indicated he achieved a Diploma of IT in Ghana and arrived in Australia on 11 February 2014. He said he worked as a systems engineer in Ghana. As to the courses he had successfully completed in Australia he said he had completed an Advanced Diploma of IT which he studied from April 2014 to April 2015 through Sydney College of Business and IT.

11. The Tribunal raised with him that the information before it indicated he ceased those studies in 15 January 2015. The Tribunal questioned whether the document from the education provider of February 2015 was genuine as to him studying at that time as it did not accord with the record of what he was studying and the information before the Tribunal indicates that he did not successfully complete any course in Australia, and ceased studying the Advanced Diploma IT on 15 January 2015 and never started the Diploma of Management or Advanced Diploma of Management. The Tribunal indicated this information may lead it to find he did not meet the genuine entrant criteria and that he is not credible as he has provided a non-genuine document.

12. He said he had not successfully completed any course in Australia. He said the truth is he stopped studying the Advanced Diploma of IT in early January.

13. The Tribunal questioned whether the document was genuine from his education provider if he stopped studying in January. He said it is true.

14. The Tribunal raised with him that he had provided two pieces of oral evidence, firstly that he completed the IT course in April 2015 and then that he stopped studying the course in January 2015 as it was too hard. He said he was having trouble with IT so his visa was going to expire, so he applied on 6 February 2015 to do Management.

15. The Tribunal asked about his enrolment and study in the Diploma of Management and he said he did not start the course. When asked why, he said because his visa was cancelled and the case officer wanted an IELTS result. The Tribunal questioned whether this explained why he was not studying and said he was here in Australia on a student visa and allowed to study on a bridging visa. He said he thought he wanted to hear form Immigration before making any move.

16. The Tribunal raised with him that he was granted a student visa to come to Australia to study but had been in Australia for 18 months, not complete any course and not been enrolled or attending class since January 2015. He said the reason for him stopping school was he wanted to extend his visa and change course and that is why he stopped school. He said he wanted to change from IT to Management.

17. The Tribunal questioned why he did not start the management course. He said because they cancelled the visa.

18. As to work in Australia; he said he is working in a factory.

19. As to why he wants to study in Australia; he said that would improve his employment opportunities in Ghana and what he had studied in Australia he could impart in his country. He said he wanted to work in his country.

20. The Tribunal noted he had been enrolled in IT, Management and now Business and asked why he wanted to study these courses and why he changed the courses. He said he did business in High School, then did IT in Ghana and as IT was difficult ,he went back to business, where he could improve on his skills and go back to his country and work

21. The Tribunal questioned him further and asked what sort of job he was looking for in Ghana; he said there were lots of jobs, and he said in banking or marketing or he could work in his Aunt’s warehouse and he could go and manage it.

22. The Tribunal noted he had obtained a Certificate of Enrolment to undertake a Diploma of Business from 17 September 2015 to 15 July 2016 and asked him why he wants to study that course and whether he had looked into it. He said he thinks it will help him in employment. The Tribunal raised with him his answers as to why he wants to study this course appeared vague

23. As to how he found out about the course; he said though a friend. The Tribunal asked whether he knew any of the subjects he was going to study; he said management and when asked what the names of the subject were, he said he did not know. He knew there were 8 subjects. When asked when he first investigated doing this course, he said he had a friend there and he said the College is good. He said he has known about the College for a couple of months. As to whether he had spoken to anyone at the College, he said just his friend. He said he obtained the COE on Friday 14 August 2015.

24. He said he had no family in Australia but his girlfriend is a permanent resident in Australia. He said his whole family is back in Ghana.

25. As to why he did not want to undertake the Diploma of Business in Ghana; he said the education system and facilities are not as good.

26. The Tribunal questioned him as to his ties to Ghana and whether they would present as an incentive to return. He said his family are there and they have businesses there and there are more jobs in Ghana. He confirmed he had a good job in Ghana. He said there were no military service commitments, nor is there political or civil unrest in Ghana which would present as a significant incentive for him not to return.

27. The Tribunal raised with him that it may appear that having his girlfriend in Australia indicates a strong incentive to remain in Australia. He said he wants to concentrate on his studies but she is a bonus.

28. The Tribunal raised with him it had concerns he was using the student visa to maintain residence and not using it for the purpose it was intended. It raised with him that he had been in Australia for 18 months and not successfully completed any courses, had been enrolled in a range of courses and appeared vague as to why he wants to study in Australia and why he wants to now study business. He said it would assist as his family had business in Ghana. As to why he did not study in Ghana he said because the education system is poor. I noted he had a Diploma of IT in Ghana.

29. As to whether there was anything he wished to add he said he requested he be granted a visa to continue with his education and go back home and utilise his certificate.

30. On 22 September 2015 the Tribunal wrote to the applicant the following s.359A letter.

    The particulars of the information are:

    ·    Information before the Tribunal from the PRISM records indicates that you ceased studying the Advanced Diploma of IT on 15 January 2015. Information indicates that you notified the education provider you wished to cease being enrolled in that course on that day.

    ·    Information also indicates you did not commence the Diploma of Management or Advanced Diploma of Management on 13 April 2015.

    This information is relevant as it may lead the Tribunal to find you are not a genuine applicant for entry and stay as a student as you were not enrolled in a course of study or studying from 15 January 2015 until 7 September 2015, being the commencement of the Diploma of Business.

    This information is also relevant as it may lead the Tribunal to find that the letter you have presented from Sydney College of Business and IT dated 9 February 2015 is not genuine, as it indicated you were currently studying the Advanced Diploma of IT on that day. This may lead the Tribunal to find you are not a credible witness as you have presented a non-genuine document to the Tribunal.

    This may lead the Tribunal to find that you are not a genuine applicant for entry and stay as a student under cl572. 223(1) and it may indicate that you do not meet the relevant criteria for the grant of a student visa.

31. The applicant responded by providing the Tribunal with a Statement of Attainment from the education provider dated 16 April 2015 indicating he completed two courses in the Advanced Diploma of IT.

32. In a written response he indicated that he did not cease studying the Advanced Diploma of IT on 15 January 2015 as he was still enrolled in that class. He said he was inconsistent in attending classes as he felt ill and the letter issued on 9 February 2015 is a genuine document, given by the College. He claims due to his illness he missed classes and faced difficulties understanding but he tried his best and received the letter of achievement referred to above.

33. He claims he did not commence the Diploma of Management as he was very stressed due to the visa refusal process. He said he was upset as he could not predict whether he would receive his visa or not. He said he was unable to concentrate and decide whether to enrol or not. He claims he went to the College in May and they told him they had cancelled his CoE which made him more depressed. He claims despite all this he decided to continue his studies. He said he is currently attending his business course and meting academic requirements.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

35. 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)         …

36. 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.

37. 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. In making the decision the Tribunal has considered all the evidence before the Tribunal with regard to the applicant’s circumstances and immigration history, and all matters as outlined in Direction No. 53 and any other matters it considers relevant.

38. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

    ·As to the applicant’s circumstances in his home country, the Tribunal is of the view he has provided sound reasons why he is not studying in his country. No evidence has been presented that the applicant’s economic circumstances would present as a significant incentive for the applicant not to return to the country. There is no evidence before the Tribunal that political and civil unrest would result in the applicant choosing to remain in Australia indefinitely. There is no evidence before the Tribunal of military commitments that would prevent as a significant motive to return.

    The applicant’s evidence, however, indicates while his family are in Ghana, his girlfriend is a permanent resident of Australia. When questioned as to this and that this may indicate a strong incentive to remain in Australia; he said he is in Australia to study but she is a bonus.  The Tribunal is of the view that having a girlfriend in Australia who is a permanent resident is indicative of strong ties to Australia, even with his family in Ghana, and a relevant consideration as to his genuine intention to remain in Australia temporarily.

    ·The Tribunal is of the view for the reasons that follow that the student visa is being used by the applicant to maintain ongoing residence and is being used to circumvent the intentions of the Migration Program.

    As discussed with the applicant and highlighted above the applicant has been in Australia for 18 months and not successfully completed any course. He has been enrolled in a range of courses from IT to Management to Business. The evidence, while confusing, indicates he ceased studying the Advanced Diploma of IT early in 2015 and did not commence the Diploma of Management in April 2015. He then obtained a CoE for a Diploma of Business on 14 August 2015, three days before the hearing date to commence studying on 7 September 2015. It is his claim he is now attending and successfully achieving components of the Diploma of Business.

    The Tribunal views that the range of courses enrolled in over a period of 18 months plus, from IT to Management to Business as of concern. The Tribunal views as of concern that he has not attended College to achieve an education outcome for 6 months plus from early 2015, January 2015 according to the PRISMS database and the applicant’s evidence at hearing, to be indicative of a person using the student visa program to maintain residence. While there is other evidence he continued to study past January 2015 to February 2015 and later the Tribunal places more weight on the evidence of the PRISMS records, which is consistent with the applicant’s evidence at hearing.

    It also views as of concern that within the approximately 18 month period he has been in Australia he ceased enrolment in January 2015, according to PRISMS then enrolled in a course of study from May 2015, being the date when his CoE for the Diploma of Management which he did not commence, then enrolled again in mid-August 2015 to commence in early September 2015. It views these gaps in enrolment and non-commencement of studies to be indicative of a person using the student visa program to maintain residence. It has considered his reasoning in his evidence to the Tribunal and reply to the s.359A letter but considers a person who is in Australia to study would continue to study, be continuously enrolled throughout this period and obtain an education, despite those concerns, even after the Department refusal and when on a Bridging visa.

    ·As to the value of his current course, the Diploma of Business, to his future, the applicant initially indicated it was to improve his employment prospects in Ghana and then stated it was to aid the family warehouse and business. The Tribunal finds his evidence as to why he was studying the Diploma of Business as vague.  When combined with his lack of knowledge at the hearing of the course he is proposing to study, the Diploma of Business, he could not name any of the subjects, and lack of research, he had only spoken to a friend and not contacted the education provider, it is of the view these factors are indicative of a person using the student visa to maintain residence rather than for the purposes it is intended.

    The Tribunal is also of the view that the fact he has studied a range of courses, indicates that there is little educational pathway or progression with a goal in mind and that he is not genuinely studying with his claimed future career in mind. It adds to its finding the applicant is does not meet the genuine temporary entrant criterion.

    In making this finding the Tribunal has considered the remuneration the applicant could expect to receive in Australia as opposed to his home country but does not view on the evidence before it that this is indicative of an incentive of the applicant to remain in Australia

    ·As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else, or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas. There is no evidence in this regard that indicates that the applicant has an intention to remain in Australia indefinitely or is seeking to circumvent the immigration law in Australia.

1. In making my decision I have considered all the evidence before me, including that he studied the Diploma of IT from February 2014 until approximately early 2015, and is currently attending classes and achieving academic progress in the Diploma of Business which commenced in September 2015; and all the submissions and evidence raised by the applicant; however for the reasons outlined above is of the view that he is undertaking study in Australia as a pathway to primarily maintain residence in Australia.

2. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

3. 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).

4. 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

5. The Tribunal affirms the decisions not to grant the applicant a Student (Temporary) (Class TU) visas.

   Gabrielle Cullen
   Member