1511461 (Migration)

[2016] AATA 3449

1511461 (Migration) [2016] AATA 3449 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Adel Ahmed Risha

CASE NUMBER:  1511461

DIBP REFERENCE(S):  BCC2014/3453351

MEMBER:Gabrielle Cullen

DATE:2 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2016 at 10:40am

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 on 22 January 2015 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 for the visa on 16 December 2014. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. Movement records indicate that the applicant initially arrived in Australia on 6 April 2007 on a student visa valid to 23 March 2009. Further student visas were granted to 15 March 2015. He departed Australia from 15 July 2010 to 16 September 2010, 13 January 2013 to 17 March 2013, 1 August 2014 to 16 October 2014 and from 10 July 2015 to 10 September 2015.

4. The Certificate of Enrolment attached with this application for a student visa referred to the applicant studying a Certificate III in Financial Services from 16 February 2015 to 4 February 2016 and a Certificate IV in Accounting from 15 February 2016 to 14 August 2016.

5. The delegate decided to refuse to grant the visa on 22 January 2015. The delegate assessed the applicant against the criteria for a Subclass 572 visa. The visa was refused because the applicant did not provide evidence to demonstrate that he met the Schedule 5A English language proficiency requirements for the purposes of cl.572.223(2)(a). The delegate commented that the applicant had been in Australia since 6 April 2007, and has held student visas since he arrived, but the evidence he provided demonstrated that he had been studying for about 3 years so he could not reach the 5 year requirement in cl.5A407(f) or any of the other alternatives provided by the clause.

6. The applicant applied for review of the decision on 28 January 2015. The applicant provided a copy of the delegate’s decision with his review application.

7. The Tribunal (differently constituted) wrote to the applicant on 9 March 2015. He was invited to a hearing on 16 April 2015. He was asked to provide evidence that he met the requirements for the visa. The Tribunal received a response from the applicant on 3 March 2015 and 10 April 2015. He submitted information regarding his academic activities in Australia. He argued that he had completed a Certificate IV which enabled him to satisfy the English language requirements. He stated that the delegate did not acknowledge all the courses he had taken. The applicant provided a chronological account of his courses. He submitted documents relating to those courses, including a certificate he obtained for doing an English course in 2007 from 11 April 2007 until 15 June 2007; a letter from a former course provider, Zenith Business Academy, indicating that they had approved the applicant’s withdrawal from a course on 23 December 2010; a Diploma of Business Administration which the applicant obtained on 1 February 2010; a Certificate IV in Business Administration obtained by the applicant on 5 December 2008; other documents relating to that course; a copy of his Egyptian passport; an Academic Transcript dated 7 February 2010, indicating that the applicant had demonstrated the required competencies for 8 subjects towards a Diploma of Business Administration; evidence of an English course attended by the applicant in 2010; a Statement of Attainment dated 25 August 2011 indicating that the applicant had demonstrated competence in 5 subjects towards an Advanced Diploma of Management; a Certificate II in Business the applicant obtained on 15 August 2013; a Statement of Attainment indicating that on 1 April 2014, the applicant had demonstrated competence in 11 subjects towards a Certificate III in Business Administration; and another Statement of Attainment indicating that on 5 December 2014, the applicant had demonstrated competence in 3 subjects towards a Certificate IV in Small Business Management.

8. In the second submission, the applicant stated that he had an offer of enrolment for a degree course and if the Tribunal accepted the offer he would get the enrolment certificate. He submitted documents provided with his earlier submission; documents relating to his financial circumstances, his academic activities in Egypt, and his identity; a medical certificate dated 24 June 2008; a death certificate dated 24 September 2011; evidence of flights he had taken in 2014; a Letter of Offer from King’s Own College for a Bachelor of Business course commencing in 2016; a certificate of enrolment for a Certificate IV in Small Business Management which commenced on 9 March 2015 and ended 6 December 2015; an enrolment certificate for a diploma course in 2016; and documents from his course provider regarding his involvement with those courses.

9. At the hearing with the Tribunal (differently constituted), the English language proficiency requirements were discussed with the applicant. The Tribunal referred to clause 5A407 and explained the alternative ways in which applicants could meet the language requirements. The Tribunal referred to the applicant’s earlier submission and commented that the provision he was relying on to demonstrate that he met the English language requirements, relating to the Certificate IV qualification he had obtained in 2008, did not apply in his case because he had not completed the qualification in the two years preceding the application. The Tribunal discussed with the applicant the other alternatives in clause 5A407 and the possible ways in which he could satisfy the requirements. The applicant stated that none of the alternatives applied in his case. The Tribunal asked the applicant if he had done an IELTS test in the last two years. He stated that it never occurred to him to do an IELTS test and none of the other Egyptian students had done or were required to do an IELTS test. The Tribunal commented that it appeared to be the only way he could meet the requirements. He was asked to think about booking an IELTS test. The applicant advised the Tribunal on 17 April 2015 that he had booked an IELTS test for 9 May 2015. The Tribunal indicated to the applicant that it would await the result before proceeding to a decision. The applicant submitted the IELTS test result on 26 May 2015. He had achieved an Overall Band Score on 5.0 for the test taken on 9 May 2015.

10. On 27 May 2015 the Tribunal (differently constituted) affirmed the delegate’s decision as it was not satisfied that the applicant had provided information to demonstrate that he meets the Schedule 5A English language proficiency requirements for the purposes of 572.223(2)(a) of Schedule 2 to the Regulations.

11. On 19 August 2015 the Federal Circuit Court ordered by the consent of both parties that this matter be remitted to the Tribunal for reconsideration.

12. The applicant appeared before the Tribunal on 1 February 2016 to give evidence and present arguments with the assistance of an interpreter in the Arabic and English languages. Prior to the hearing he submitted a COE to study a Diploma of Marketing from 11 January 2016 to 7 January 2018 and evidence that he completed a Certificate IV in Business Management on 14 December 2015.

13. The Tribunal discussed with the applicant the requirements of cl.572.223(2)(a) and the Schedule 5A requirements, including the requirements needed to meet English language proficiency in cl.5A407. It raised its concern that the evidence may indicate he does not meet cl.5A407. He indicated he had only achieved an IELTS score of 5 but had a Certificate IV and this, he was told, is sufficient. The Tribunal noted that the cl. 5A407 with regard to completing a Certificate IV course in the manner he had, required that he achieve a substantial part of the course leading to a qualification of Certificate IV or higher as the holder of a student visa, and noted that the Certificate IV course the applicant recently completed was not achieved while he was holding a student visa as this was done after he had applied for the current student visa. It noted the previous Certificate IV course was completed more than two years before the date of application. It also referred to the other requirements and indicated that it does not appear he had at least 5 years of study in English where he had successfully completed the course or subjects based on the Certificates he had provided in one of the countries specified, including Australia. When raised the applicant did not refute this but referred to having completed a Certificate Iv course.

14. He said he was currently enrolled in the Diploma of Marketing and had been in attendance at that course for one week.

15. The Tribunal raised with the applicant that another matter before it is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, 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. The Tribunal asked numerous questions as to the components outlined in Direction 53 and raised its concerns that he was using the student visa program to maintain residence.

16. In particular he indicated he was currently enrolled in a Diploma of Marketing and had been attending for one week. He said one of the subjects was Human Resources in Marketing. As to why he wanted to study this course, he said when he returned to Egypt in 2015 he discussed his future employment with a company in Cairo and they said he needed to do a marketing course.

17. As to his education in Egypt, he said he studied law for one year at a tertiary institution in Egypt but as there are few job opportunities he came to Australia. He said he did well at High School and got 92%. He said in 2007 he wanted to do law but it was expensive. He said the College he first attended shut down, while he was studying English.

18. The Tribunal asked why he wanted to do law in a Commonwealth country where the law was very different in Egypt. He then said he wanted to work in a company. He said he had never been enrolled in law.

19. He outlined the courses he had successfully completed including

    ·     11/4/07 to 15/6/07 – English

    ·     21/7/08 to 5/12/08 – Certificate IV in Business Administration.

    ·     9/2/09 to 9/2/10 – Diploma of Business Administration

    ·     4/1/10 to 26/2/10 – English

    ·     9/4/12 to 2/9/12 – Certificate II in Business

    ·     8 October 2012 – 6 December 2012 (deferred) and 15 April 2013 to 12 January 2014- Certificate III in Business

    ·     8/5/2014 to 5/12/14 and 9/3/15 to 6/12/15 – Certificate IV in Small Business Management

20. He said he will finish the Diploma of Marketing in 2018 and then return home.

21. The Tribunal raised its concern as to the length of time he had spent in Australia, being approximately 9 years and that he wants to stay until 2018, being 11 years. It raised that his length of time in Australia may indicate he is using the student visa to maintain residence and not as a temporary entrant, even taking account the times he had returned home. The Tribunal raised that it may indicate he wanted to stay in Australia permanently rather than temporarily. He referred to returning to Egypt in 2015 for one and half months, 2014 for two months, and 2013 and 2010 for two months.

22. He said he works in a supermarket in the City on weekends. He said he had never worked in Egypt.

23. He said his siblings and parents are in Egypt and he has no family connections in Australia. He said it is unlikely he will have military commitments in Egypt and he does not currently fear returning because of civil and political matters. He said he has not applied for permanent residence in Australia.

24. The Tribunal raised its concerns he was using the student visa to maintain residence and he had been in Australia for almost 9 years, only studied successfully completing courses for approximately 5 years and only completed a limited number of courses, all at the vocational level. It noted he had been enrolled in a range of areas and there did not appear to be educational advancement or a career pathway. It also noted that the courses he had undertaken were relatively inexpensive.

25. He said the revolution happened in 2011 and he did not want to return for about two to three years after this, and did stay to avoid the political and civil difficulties in Egypt. However he said things have changed, there is now stability in Egypt, the economy is improving, there are now opportunities and he wants to complete his Diploma of Marketing. He said he now wants to return after he finishes his course. He said he witnessed this when he went home four months ago.

26. The Tribunal raised with him that this may indicate that he is using the student visa to maintain resident due to his past behaviour.

27. As to the value of the Diploma of Marketing to his future, he said when he went home in 2015 he talked to the company and he was told the President wants to open the economy and they need businessmen in Egypt with marketing skills to help business people from overseas. He said a marketing course will make it easy for him to obtain a job in Egypt. He said the company he spoke to was Egyptian South Canal. When asked for more information he said when he returned in July he started talking and they told him that he did not have enough and he needs marketing and they would see. He said he did not have a contract with this company but they had helped him a lot.  As to the role he will undertake it would be marketing and help businessmen to invest in Egypt. He said it is a big company. He said he saw these people in July 2015. He said he did not have a contract for this job.

28. The Tribunal asked if this was the case why he had enrolled in the Diploma of Marketing course before in 2014 but deferred it. He said he was thinking about his visa. The Tribunal asked why he had not completed it then but he had re-enrolled on a number of occasions. He referred to his brother passing away in 2011 as to deferring the course.

29. It referred to the range of courses he had been enrolled in and he said he had not been enrolled in accounting. He said maybe the agent did it.

30. The Tribunal raised with him his evidence of periods of non-enrolment on a student visa.

31. The Tribunal questioned why he was working in a supermarket if he wanted to return to work in a company in Egypt and he said because he was studying he could only work twenty hours and working weekends only and it was hard to find a job like this. He said he had not tried to find work in his area. He said he cannot work full time as a student.

32. The Tribunal raised with him its concern via s.359AA that there was no evidence he successfully completed any course in 2014 and this may question whether he meets the genuine temporary entrant criterion. He said when his brother passed away in 2011; he had psychological issues for which he sought psychological help. He said he could not remember his name, The Tribunal  said it was hard to see that he could not study because of this when he had completed the Certificate II and III. He referred to the difficulties in his country and concerns for his future.

33. He said last month he had an operation on his knee to fix his ACL.

34. He repeated that he wanted to finish his Diploma of Marketing and find a good job. He said the course was one year but the education provider made it two.

35. The Tribunal asked if he had previously looked for work in Egypt and he said before the job market was very depressed but when he went back this time, in 2015 it had improved

36. The Tribunal said it had difficulty understanding why a person who had been to University to study law would spend 9 years studying at the vocational level. He said there are no jobs as lawyers. He said that a university course in Australia would cost much and that is why he did the lower level courses. The Tribunal questioned this when he had spent 9 years in Australia studying.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

39. 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)         …

40. 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.

41. 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.

42. 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.

43. As to the applicant’s circumstances in his home 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 Egypt. It accepts that the courses he has undertaken in Australia are regarded as better. There is no convincing evidence before the Tribunal of military commitments that would present as a significant motive not to return. The Tribunal accepts that he has closer family ties to Egypt which is indicative of a person who is only a temporary entrant and wishes to return to their country.

1. While the Tribunal notes his evidence that currently political and civil unrest in Egypt would not result in the applicant choosing to remain in Australia indefinitely, of concern is his evidence at the hearing before me that in the past from 2011 for about two to three years such issues  were a string incentive for him to remain in Australia.

2. As the above information indicates the applicant has been in Australia since April 2007, a period of  almost 9 years and wishes to study for a further two years, resulting in his time studying in Australia being almost 11 years. While the applicant has returned to Egypt on a number of occasions, including for two months in 2010, two months in 2013, two months in 2014 and two months in 205, the Tribunal views this extended period of time spent in Australia to be indicative of a person who is not a temporary entrant.

3. It also views as significant that in the almost 9 year period he has been in Australia, to be 11 years, he has only been enrolled in and completed courses at the vocational level. The Tribunal views the period he has stayed in Australia studying courses only at a vocational level indicative of a person using the student visa program to maintain residence. This is particularly of concern as he was enrolled in Egypt in a Bachelors degree and did well at school. It notes his evidence as to the costs of studying law in Australia but has difficulty accepting that studying at a lower level than in Egypt over a none year period is indicative of a genuine student.

4. Also of concern is that in this 9 year period he has been in Australia he has only successfully completed a limited number of courses, all at the vocational level, being English, Certificate IV in Business Administration, Diploma of Business Administration, Certificate II in Business, Certificate III in Business and Certificate IV in Small Business management, amounting to approximately 5 years of study to achieve courses. The applicant has referred to the difficulties he faced after the death of his brother in 2011 and while no medical evidence has been produced the Tribunal accepts this may have affected his study for a period after but views that even taking this period into account, a three year period in Australia when he was not successfully completing a course to be indicative of a person using the student visa to maintain residence. In this regard the Tribunal notes that because of the revolution in Egypt in 2011 and past political and civil unrest his evidence is he did seek to remain in Australia for these reasons for two to three years.

5. In making its finding the Tribunal has considered his evidence at hearing that he is a genuine student and a genuine temporary entrant, who wishes to return home after the completion of the Diploma of Marketing in 2018. It has considered his evidence that he returned to Egypt in mid-2015 and was advised to complete a Diploma of Marketing as this would give him the best chance to obtain a job. It has considered his evidence that the situation in Egypt has improved economically, a Diploma of Marketing is needed and that he no longer fears civil and political unrest in Egypt. He claims he has spoken to a company about job opportunities and a Diploma of Marketing is needed.

6. However, the Tribunal has difficulty accepting this to be true and that after nine years of study in Australia, where he only achieved success in a limited number of courses that he is now keen to return and pursue his career in Egypt and needs a Diploma of Marketing to do so.

7. The concerns raised above lead the Tribunal to not be satisfied that he has undertaken the courses he has, all at the vocational level, over a nine year period and wishes to undertake the Diploma of Marketing for his stated career aim. Rather it is of the view he is using the student visa program to maintain residence in Australia.

8. As to the applicant’s immigration history, there is no evidence before the Tribunal he has previously travelled to Australia or anywhere else before 2008, or applied for a permanent visa or other visa to Australia or other countries, other than applying to Australia for student visas.

9. In making the decision the Tribunal has considered all the evidence before it, including that he is currently enrolled in a Diploma of Marketing, has completed a range of courses in Australia, has stronger family ties in Egypt than Australia, his evidence he will return home after the completion of his course in 2018, and all the other matters he has raised; however for the reasons outlined above does not accept he is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

10. The Tribunal is therefore not satisfied that he is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

11. 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.

12. 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 he intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.572.223(1)(a).

13. 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

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

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.223(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)the applicant meets the requirements of subclause (1A) or (2).

    (1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training 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.

    (2)If subclause (1A) does not apply:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; 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 access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.