1508120 (Migration)

[2016] AATA 3164

1508120 (Migration) [2016] AATA 3164 (3 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shuaib Abdulla

CASE NUMBER:  1508120

DIBP REFERENCE(S):  BCC2015/1023858

MEMBER:Karen Synon

DATE:3 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.223(1A)(b) of Schedule 2 to the Regulations.

Statement made on 03 February 2016 at 3:59pm

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 2 April 2015.  The delegate decided to refuse to grant the visa on 28 May 2015.

3. 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).

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.573.223(1A) of Schedule 2 to the Regulations because he was not satisfied that the applicant had complied with condition 8202 in relation to his previous student visa: cl.573.223(1A)(b).

5. The applicant applied for review of the primary decision on 16 June 2015 and provided a copy of the department’s decision.

6. The applicant appeared before the Tribunal on 3 February 2016 to give evidence and present arguments.  The hearing was conducted via telephone with the applicant in Perth.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. Having regard to the applicant’s current course of study, a Bachelor of Engineering Honours at Murdoch University, the relevant subclass in this case is Subclass 573.

9. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223(1A)(b).  Clause 573.223(1A)(a) relevantly states:

   573.223] (1A)   If the applicant is, and was, at the time of application, an eligible higher degree student who has a confirmation of enrolment in each course of study for which the applicant is an eligible higher degree student:

   (a)      the applicant gives the Minister evidence that the applicant has:

   (i)      a level of English language proficiency that satisfies the applicant’s eligible education provider; and
   (ii)      educational qualifications required by the eligible education provider; and

   (b)      the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)      the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and
   (ii)      any other relevant matter; and

   (c)      the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

   (i)      the costs and expenses required to support the applicant during the proposed stay in Australia; and
   (ii)      the costs and expenses required to support each member (if any) of the applicant’s family unit.

10. The question before the Tribunal is whether it is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted and any other relevant matter.

11. During the course of the review the applicant provided the following relevant documents:

    ·A statement in which the applicant asserted that he has been enrolled or studying between 11 February 2011 and 15 March 2015 “albeit with some unsatisfactory results”.  He said he applied to renew his visa because he wishes to complete his course; the initial half of which has been completed.  He stated he realises he needs to achieve satisfactory course progress in order not to breach his visa conditions.

    ·A Confirmation of Enrolment in relation to a Bachelor of Engineering Honours degree at Murdoch University with a course end date of 30 June 2017.  It is dated 8 January 2016.

    ·A letter from Franklin White, Manager, The Student Centre, Murdoch University dated 13 January 2016.  Mr White writes that the applicant is enrolled as a full-time international student and commenced his studies at Murdoch University in February 2011.  He is expected to complete his course requirements by the end of 2017.  The applicant was enrolled on a full-time student status (9-12 credit points each semester) in consecutive semesters until 2015 when he enrolled in one unit in semester 2 only.  He is enrolled for semester 1 2016 as a full-time student.  Mr White asks that any assistance the applicant can be given would be appreciated.

    ·A Statement of Academic Record in relation to the applicant’s Bachelor of Engineering which relevantly records his study progress as:

    o  semester 1, 2011 – 4 subjects - one distinction, one credit and two passes;

    o  semester 2, 2011 – 4 subjects  - three credits and one pass;

    o  semester 1, 2012 – 4 subjects - one credit and three passes;

    o  semester 2, 2012 – 3 subjects - one withdrawal and two fails;

    o  semester 1, 2013 – 3 subjects – one pass and two fails;

    o  semester 2, 2013 - 3 subjects – three fails;

    o  semester 1 2014 – no enrolment; and

    o  semester 2, 2014 – 3 subjects – 2 credits and one fail;

    o  semester 1, 2015 – no enrolment; and

    o  semester 2, 2015 - 1 subject – one credit.

    ·A copy of an email from The Student Centre of Murdoch University dated 10 December 2013 advising the applicant that he had been excluded from his course due to unsatisfactory progress and that he had the option of either transferring to another cause or applying for readmission.

    ·A copy of a letter addressed to the applicant from Associate Professor David Holloway, President, Academic Council, Murdoch University, granting the applicant permission to enrol in one subject in the second semester of 2015 on the basis that this is the only subject he enrolled in because he had previously failed it 3 times.  A number of other conditions were attached to the applicant’s re-enrolment including attending all classes, submitting all assignments by the due date and remaining in regular contact with the unit coordinator. 

12. At the hearing the applicant explained and expanded on the circumstances that led to both his unsatisfactory course progress and non-study period.  He correctly understood that his visa was refused because he breached condition 8202 due to unsatisfactory academic progress.  He agreed that he did not maintain satisfactory course progress however said he did maintain enrolment when he was permitted to do so and attended all his classes.

13. The Tribunal highlighted the following relevant extract from the primary decision and invited the applicant’s comments on it:

    I have not been able to achieve satisfactory course progress and this is due to a few reasons.  I took a profound interest in football at one point and simply got carried away coupled with negligence from my side resulted in a bad academic semester.  This put me under pressure and I buckled for the next few semesters. Suffice to say I have learned my lesson and have overcome all the distractions and after meeting with my course academic chair, I am confident I can complete my course if I were to be given one final chance.

14. The applicant said this was all absolutely true and at one point he was not focused on his studies and had a bad year in 2013.  He explained during the hearing that he plays Futsal for the Western Australian State League and that this absorbed a lot of his attention.

15. The Tribunal noted that he did not appear to do any study during the first semester of 2014 and the first semester of 2015 and asked what he was doing during these periods.  He said he was excluded during the first semester of 2014 due to his poor academic results and he was excluded, 5 weeks into first semester of 2015 because his father was not able to pay the fees on time.  He said this was because both his sisters had married and at the time his father was facing some financial difficulties so he was late in paying the fees.  The applicant emphasised that he completed the first 5 weeks of study before he was asked to stop.

16. The applicant is fully supported by his father in relation to his living costs and course fees and has only worked for a 2 month period at the end of 2012.  Other than that he has not worked part-time.

17. In relation to his enrolment in only one subject in semester 2 2015, the applicant explained that this was dictated to him by the University given that he had found this particular unit, Mathematical Modelling, very difficult and had previously attempted and failed it 3 times.  The university allowed him to re-enrol in the semester on the condition that he only do this one subject and that he comply with a number of other strict conditions which are detailed in the letter.

18. The Tribunal asked the applicant what exactly he had done during the two semesters during which he had been excluded from study (the first semesters of 2014 and 2015).  He said that during the first semester of 2014 he completed 60 hours’ volunteer work on an “Aaquaponics” project for his Environmental Technology Sustainability subject and this involved building a system of aquaculture.  This was not a compulsory element of the unit but he decided to volunteer with a class colleague on this experiment.  He also played Futsal for the WA State League and this involved 3 days of training and 2 days of game playing.  During the first semester of 2015 he was focused on trying to figure out his future study plans and spent much of the time meeting with the unit coordinator and academic chair of the University.  He was also completing his medical examinations and other requirements for the student visa.

19. The Tribunal noted serious concerns about his capacity and intention to study a full-time study load and passing his subjects when he had not demonstrated this since the first semester of 2012; that is 4 years ago.  The applicant responded that he has now been allocated a ’Uni Student Officer’ who he will meet with every week to check his course progress, he has given up football for 2 years and has done a lot of focused training in preparation for this semester.  He has done the preliminary reading and will do everything in his power to finish the course.  He wants to make his parents proud and prove everyone wrong and so really wants to finish his study and be an engineer.

20. After taking all of the evidence into account, the Tribunal is satisfied, on balance, that the applicant is a genuine applicant for entry and stay.  In reaching this conclusion, the Tribunal records that it found the applicant to be credible and and cogent in his evidence and sincere in his dedication to completing his Bachelor of Engineering.  He provided detailed evidence regarding his study history and was honest and forthright about the difficulties he encountered during his study and the diversions which took his focus away from study.  The Tribunal accepts that he is clearly a committed soccer player given that he plays in the Western Australian State Futsal League and notes his evidence that for much of the semester for which he was excluded from study (the first semester of 2014) he played State League football which included 3 days of training and 2 days of game playing per week.  The Tribunal accepts the applicant’s evidence that he will suspend his football training and playing during the next two years to concentrate on his studies.

21. After considering the applicant’s oral evidence and placing considerable weight on the letter of support from Murdoch University, the Tribunal is satisfied, on balance, in relation to the applicant’s stated intention to comply with any conditions subject to which the visa is granted, and any other relevant matter and that he is a genuine applicant for entry and stay as a student in Australia.

22. In making this decision the Tribunal notes that the applicant appears to be under the very close scrutiny of the Academic Council of Murdoch University and that he has been allocated a student adviser with whom he will meet weekly.  The applicant is acutely aware that should he fail to satisfactorily progress in his course he will likely be reported by the University and subject to visa cancellation.

23. Accordingly, the Tribunal finds that the applicant meets cl.572.223(1A)(b)(i) and (ii) and thus meets cl.572.223(1A)(b) as a whole.

24. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

25. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223(1A)(b) of Schedule 2 to the Regulations.

    Karen Synon
    Member