1513958 (Migration)

[2016] AATA 4129

1513958 (Migration) [2016] AATA 4129 (19 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Muhammad AAMIR

CASE NUMBER:  1513958

DIBP REFERENCE(S):  BCC2015/2194906

MEMBER:Adrian Ho

DATE:19 July 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 572 Vocational Education and Training visa:

·cl.572.223(2)(b) of Schedule 2 to the Regulations.

Statement made on 19 July 2016 at 5:40pm

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 24 September 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 31 July 2015. 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. In the present case, the applicant was refused as not meeting the Genuine Student criterion.

4. The applicant appeared before the Tribunal on 5 July 2016 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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

7. Where used in this decision:

   a.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

   c.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   d.VET refers to Vocational Education and Training;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 or the Direction refer to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. In the present case, the applicant proposes a principal course in the VET sector and the subclass that may be granted is Subclass 572. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl.572.223, which is extracted in the attachment to this decision.

9. The requirements of cl.572.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible vocational education and training student’ (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible VET student’ is defined in cl.572.111 to mean an applicant for a Subclass 572 visa who is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector with an eligible education provider and, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

10. On the evidence before the Tribunal, the applicant in this case is not an eligible VET student with a corresponding COE and cl.572.223(1A) does not apply.  The Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

    Is the applicant a genuine student having regard to intention to comply and other relevant matters?

11. The Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student (genuine 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 (the ‘genuine student’ criterion).

12. This is a requirement for the visa, regardless of whether the applicant is or was an eligible vocational education and training student, because the requirement is identically worded in cl.572.223(1A)(b) and cl.572.223(2)(b). 

13. One of the two subparagraphs must apply to every applicant and it matters not which of those subparagraphs applies to the applicant; the applicant must satisfy one of the two subparagraphs and they are identically worded and require the same thing.

14. At hearing, the applicant was:

    a.Given a summary of the ‘genuine student’ criterion;

    b.Informed that the criterion was identically worded in both cl.572.223(1A)(b) and cl.572.223(2)(b) and therefore the applicant had to meet the criterion regardless of whether the applicant is or was an eligible vocational education and training student;

    c.Advised that the ‘genuine student’ criterion existed in identical terms for all subclasses of the student visa and existed in analogous terms for the student guardian visa, and if the applicant did not meet the criterion for the purposes of the subclass being sought, the applicant would not meet the criterion as expressed for each other alternative subclass;

    d.Given a suggestion that the primary occupation of a student is to study;

    e.Advised that the tribunal would consider the stated intention of the applicant to comply with any conditions subject to which the visa is granted;

    f.Advised that the imposition of condition 8202 was mandatory for all subclasses of the student visa except the student guardian visa and in order to be met it relevantly requires that:

    i.The applicant is enrolled in a registered course;

    ii.The applicant’s education provider has not certified that the applicant has not achieved satisfactory course progress or attendance;

    g.Advised that the imposition of condition 8516 was mandatory for all subclasses of the student and in order to be met it relevantly requires that the applicant must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa;

    h.Advised that the tribunal would consider any other relevant matter as required by the criterion, including the applicant’s past compliance or non-compliance with visa conditions, the applicant’s past record of study and completion of courses, the applicant’s immigration history; and any matters raised by the applicant if they were relevant to the question of whether the applicant is a genuine applicant for entry and stay as a student.

    Findings

15. At hearing the applicant gave evidence that he arrived in Australia in July 2012 holding a 573 visa to study a bachelor of business.  He failed in that study to July 2014 and claimed to suffer from depression.  While claiming to have begun seeking professional help for his claimed condition from mid-2015, the only evidence he adduced was that he sought assistance in 2016.

16. He claimed that he moved from Sydney to Perth to seek out his cousin and an environment which was more supportive of his claimed ambition to study.  He did not pursue enrolment in the higher education sector, but rather attempted a diploma of management from September 2015 to April 2016 and told the tribunal he failed all 8 units.

17. He told the tribunal that the environment in Perth turned out not to be any better than the environment in Sydney.

18. He attempted the same diploma again in 2015-2016 and passed three subjects. He reported that he was unable to work on the bridging visa C he held and was asked to pay ‘late fees’ to lodge his assignments late. He could not afford the fees, was unable to lodge his assignments, and thereby did not the complete the course, for a second time.

19. The tribunal considers that a genuine applicant for entry and stay as a student is a person who genuinely intends to be a student in Australia.  As suggested, the primary occupation of a student is to study.  The tribunal considers that the onus is on each student to select a course in a subject and at a level where satisfactory course progress is achievable.  The tribunal must consider the stated intention of the student to comply with any conditions subject to which the visa is granted. 

20. Condition 8202 is one such condition and it requires that an applicant’s education provider has not certified that the applicant has not achieved satisfactory course progress or attendance.  The tribunal considers that in order to intend to comply with Condition 8202 a student should intend to achieve satisfactory course attendance and progress such that certification by the education provider is not warranted.

21. Over time, a pattern of failure and lack of course completion may suggest that the student’s intention to comply with Condition 8202 is not an intention genuinely held.  The tribunal reiterates that it considers that each student must choose a course at a level which the student has a reasonable chance of successfully completing.  The tribunal further considers that when a student seeks and is granted a student visa as a student, the student asserts, through the visa criteria, that the student has the necessary English language acumen, financial capacity, and, in the tribunal’s view, the necessary personal qualities and resolve to embark upon the study selected by the student, achieve satisfactory outcomes, and see through that study.  That is the expectation embedded in the imposition of Condition 8202, the breach of which may lead to visa cancellation.

22. If a student, holding a student visa, finds that for personal reasons the student cannot maintain satisfactory course progress, the student has a very definite choice.  One choice is to advise the Department that the student is at risk of breaching Condition 8202 and return to the student’s home country until such a time as the student is personally ready to study successfully in the selected course.  Another choice is to remain in Australia on the student visa which the tribunal considers is a decision to recommit to achieving satisfactory course progress such that a certification under Condition 8202 is not called for.

23. In this case, the applicant has a poor study history having failed in the higher education sector and failed twice at the same course in the VET sector.  Despite claiming that personal reasons prevented him from achieving satisfactory course progress he neither decided to cease study and stay in Australia as a student, nor can he produce evidence that he prompt sought help to rectify his lack of progress.  As a result, the tribunal is not persuaded that depression or social isolation sufficiently explain the applicant’s inability to achieve satisfactory course progress, twice in the same VET sector course.

24. The tribunal considers that the applicant is at the very outer edge of being able to demonstrate that the stated intention to comply with visa conditions, including mandatory Condition 8202, is one that is genuinely held.

25. On the basis only of his attempts to study during the process of his application and review, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student.

26. On the evidence, the tribunal accepts that the applicant is not an eligible VET sector student and therefore cl.572.223(1A)(b) does not apply.

27. Instead, the applicant meets cl.572.223(2)(b).

28. In the tribunal’s view any further lack of satisfactory course progress will indicate that the applicant does not meet cl.572.223(2)(b) or its equivalents.

    Genuine Temporary Entrant criterion

29. The tribunal has not considered the  Genuine Temporary Entrant criterion, which the tribunal considers to be a broader enquiry into the intentions of the applicant.

30. 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

31. 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 572 Vocational Education and Training visa:

    ·cl.572.223(2)(b) of Schedule 2 to the Regulations.

    Adrian Ho

    
    

    Member

    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.