Abuhamda (Migration)

[2020] AATA 5977

Abuhamda (Migration) [2020] AATA 5977 (19 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maher Fayiz Saleh Abuhamda

CASE NUMBER:  1723515

HOME AFFAIRS REFERENCE(S):          BCC2017/2781363

MEMBER:Gabrielle Cullen

DATE:19 November 2020

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 November 2020 at 3:02pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – subclass 500 (Student) visa–in Australia for a long period time– genuine temporary entrant criterion not met– little knowledge of the course he is enrolled in –use the student migration program to maintain ongoing residence – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, r 1.03, Schedule 2, cl 500.211, 500.212

Education Services for Overseas Students Act 2000

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 and Border Protection on 13 September 2017 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 4 August 2017. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The applicant arrived in Australia on a subclass 573 visa on 12 September 2007 valid to 8 April 2008. He was then granted subclass 572 visas to 4 August 2017 and applied for the visa to which this decision relates on 4 August 2017. He has departed on one occasion from 22 January 2015 to 27 February 2015.

4. A Confirmation of Enrolment attached to the current application of 4 August 2017 refers to the applicant studying an Advanced Diploma of Management (Human Resources) to 6 May 2018, which was extended to 17 June 2018. He then submitted COEs to study a Diploma and Advanced Diploma of Marketing and Communication from 16 July 2018 to 20 September 2020, which he claims he has successfully completed. On 16 November 2020 he submitted a COE of the same date to study a Diploma of Community Services at Education Training and Employment Australia (ETEA) from 11 January 2021 to 11 July 2022.

5. He provided evidence that he had previously completed the following courses in Australia

   ·Certificate issued on 1 June 2010 indicating the applicant has fulfilled the requirements for the Advanced Diploma of Business Management.

   ·Certificate issued on 10 July 2012 indicating the applicant has fulfilled the requirements for the Certificate IV in Business.

   ·Certificate issued on 3 March 2016 indicating the applicant has fulfilled the requirements for the Certificate IV in Human Resources.

6. He also provided evidence that he completed a Bachelor of Business Administration in Jordan prior to coming to Australia in 2007.

7. With his application he submitted the following statement addressing the genuine temporary entrant criteria.

   I am looking to complete my Advanced Diploma of Management at George Brown College. I have taken this initiative to renew my student visa in Australia as I want to complete my Advanced Diploma as I am close to the end. Completing this qualification will allow me to further my career plan. I have come to this decision as I was born in Kuwait and have resided there for a number of years. Thus, my goal is to go back to Kuwait as I have made a number of connections in the industry there and open my own business with my brothers.

   I have chosen to study in Australia as it is one of the leading countries in education internationally. I have already gained the opportunity of residing in Kuwait and have established a number of connections with people. This will give me and my brothers an advantage over competitors in this industry as we will combine our qualifications to help us achieve our goal. As I have already completed a Bachelors in Marketing and a Certificate IV in Business and an Advanced Diploma in Business Management. If I complete the Advanced Diploma I will have the qualifications necessary to run a business.

   I am extremely determined and hardworking individual and I am confident in achieving my goals so I can excel in this industry if I am granted the opportunity to do so. I kindly ask for this great opportunity of studying here in Australia to be granted as I do not have long to go to complete the qualification.

8. On 13 September 2017 the delegate decided to refuse to grant the visa because the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Regulations on the basis that he is not a genuine applicant for entry and stay as a student. The delegate was concerned at the applicant’s length of time in Australia having arrived on 5 September 2007 on a subclass 573 visa and being granted a further 4 student visas, the last on 10 August 2015 valid to 4 August 2017. The delegate outlined the course successfully completed by the applicant and was concerned as despite his length of time in Australia he had only successfully completed limited courses, had not progressed beyond the vocational sector and had not provided substantial reasons as to why he is enrolled in the Advanced Diploma of Management (Human Resources).

9. On 29 September 2017 the applicant lodged an appeal to the Tribunal and attached the decision of the Department.

10. On 5 April 2019 the Tribunal wrote to the applicant a s.359(2) letter as follows.

    As you applied for the visa on the basis of undertaking a course of study in Australia, it is a requirement of the visa for you to be:

    ·enrolled in a registered course of study; and

    ·a genuine applicant for entry and stay as a student.

    Accordingly, you are now invited to give, in writing, information about the course(s) of study you are undertaking and your entry and stay in Australia as a student. Specific details about the information requested is set out in the ‘Request for Student Visa Information’ form which you can access by clicking on the link below.

11. The Tribunal also advised that in considering whether the applicant is a genuine applicant for entry and stay as a student the Tribunal must have regard to ‘Ministerial Direction No.69 ‘Assessing the genuine temporary entrant criteria for Student visa and Student Guardian visa applications’ and attached a copy.

12. On 23 April 2019 the applicant submitted a completed “MRD Student Visa Information Form” indicating he had successfully completed an Advanced Diploma of Management from 2008 to 2010, a Certificate III in Business and Advanced Diploma of Business from 2010 to 2012, a Diploma of Marketing in 2012, an Advanced Diploma of Human Resources form 2013 to 2016 and was currently studying an Advanced Diploma of Marketing. He also provided the following additional information relevant to the genuine temporary entrant criteria.

    ·His mother and three brothers live in Jordan, another brother lives in the United Arab Emirates and his sister lives in Israel.

    ·As to his future employment plans, he indicated he is looking to work in the UAE with excellent status, high skills and English language.

    ·He has no military commitments or civil and political reasons why he cannot return to Joran

13. On 15 May 2019 the Tribunal wrote to the applicant and invited him to attend a hearing on 14 June 2019. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

14. Prior to the hearing the applicant provided a COE to study an Advanced Diploma of Marketing and Communication from 24 September 2018 to 20 September 2020 and certificates evidencing completion of past courses including.

    ·Certificate issued on 1 June 2010 indicating the applicant has fulfilled the requirements for the Advanced Diploma of Business Management. A transcript was also included.

    ·Certificate issued on 10 July 2012 indicating the applicant has fulfilled the requirements for the Certificate IV in Business. A transcript was also included.

    ·Certificate issued on 5 June 2013 indicating that the applicant has fulfilled the requirements for the Diploma of Management. A transcript was also included.

    ·Certificate issued on 19 August 2015 from George Brown College indicating applicant has fulfilled the requirements for Diploma of Marketing. A Record of Results is included.

    ·Certificate issued on 3 March 2016 from George Brown College indicating the applicant has fulfilled the requirements for a Certificate IV in Human Resources. A Record of Results was included.

    ·Certificate issued on 19 July 2018 from George Brown College indicating that the applicant has fulfilled the requirements for the Advanced Diploma of Management (Human Resources). A Record of Results was included.

15. The applicant appeared before the Tribunal (differently constituted) on 14 June 2019 and again on 9 August 2019 to give evidence and present arguments. His representative did not attend the hearings. He was assisted with an interpreter in the English and Arabic languages at the hearing on 9 August 2019. At the hearings the applicant provided evidence as to matters pertaining to the genuine temporary entrant criteria.

    ·When initially asked what his plans are for the future; he said that is something that belongs to the future and he is currently concentrating on finishing his course.

    ·As to how the courses he has studied and his current enrolment in the marketing and communication area will assist his future career aim, he responded that the most important thing for him is to focus on his English and his current course is a pathway to be a sales manager. When asked what kind of sales; he responded sales and the market is changing and he cannot really say and then he referred to the retail of food area, such as Coles and Woolworths. He said a sales manager needs to have knowledge of many different aspects of work including human resources, sales, management, financial aspects and planning.

    ·When asked if he is intending to study further after he completed the Advanced Diploma of Marketing and Communication; he responded that he did not know and when again asked whether he will return home on completion of the Advance Diploma he said he does not know about the future. He said he does not know what his intention will be in the future, but his present intention for the future is that he will finish his course .

    ·He does not own any property in Jordan.

    ·He worked as a sales agent in Jordan from 2002 to 20017.

    ·His brother lives in Australia.

    ·He is divorced from someone who lives in Jordan. He has no children.

    ·When asked as to the incentives he had to return home; he said he did not know.

    ·He confirmed he had held 5 student visas and only departed Australia on one occasion.

    ·The Tribunal raised concern as to his length of time in Australia, that he had not progressed past the vocational level and had not provided any detailed plan as to what he will do on return. In response the applicant said he has been enrolled in courses and has been committed to study and to finishing the courses, paying instalments and he is committed to his studies. He said these studies are preparing him to be a manager of a big company.

    ·He said the companies he is aiming to find a job with is a company like Emirates

    ·At the second hearing the applicant referred to returning to a position in an aerospace company, aviation or airline company and he said it is a management position.

    ·He is currently working in the city convenience store.

    ·He referred to studying in Australia also to improve his English and he wants to reach conversational English and that will be in two years. He said he was having private tutoring in English.

16. On 29 July 2020, the applicant was advised by the Tribunal that the previous Member who was reviewing the cases is no longer available and that the matter had been reconstituted to a different member. The applicant was advised that all documents and other material that were considered by the previous Member have been given to the current member, including material from the Department; recordings of any hearings and any submissions or other evidence provided to the Tribunal.

17. On 16 September 2020 the applicant was invited to attend a hearing on 12 November 2020. The letter, among other matters, requested the applicant provide a current COE and documents that show his past studies in Australia. It noted the Tribunal may assess whether he intends genuinely to stay in Australia temporarily, which was the reason for the delegate’s decision and referred to and attached Direction 69. The letter also noted that the Tribunal may assess whether the applicant is enrolled in a registered course of study and that not being enrolled in a registered course of study may be a reason, or a part of the reason, for the Tribunal affirming the decision under review.

18. On 7 October 2020 the Tribunal sent the following s.359A letter to the applicant:

    You are invited to comment on/respond to information that the Tribunal considers would, subject to any comments/response you make, be the reason, or a part of the reason, for affirming the decision that is under review.
    
    The particulars of the information are:

    ·You applied for a Student visa on 4 August 2017 and attached a Confirmation of Enrolment to study an Advanced Diploma of Management (Human Resources) to 6 May 2018. You subsequently submitted Confirmation of Enrolments to continue studying the Advanced Diploma of Management (human Resources) to 17 June 2018, and to study a Diploma and Advanced Diploma of Marketing and Communication from 16 July 2018 to 20 September 2020.

    ·Information from the Australian Government’s PRISMS record system, which records Confirmation of Enrolments and start and end dates of each course you were enrolled in, indicates that you are not currently enrolled in a registered course of study and that enrolment in the Advanced Diploma of Marketing and Communication ceased on 20 September 2020 when you finished the course.

    This information is relevant because one of the criteria for the visa for which you have applied, regulation 500.211 provides that at the time of this decision you are enrolled in a course of study: cl.500.211(a). You have not claimed to meet any of the alternative criteria in cl.500.211.

    ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

    The evidence from the PRISMS record indicates that you do not meet this requirement as you are not currently enrolled in a course of study.

    If the Tribunal is not satisfied that you meet this requirement, the Tribunal may find that you do not meet cl. 500.211. You may then not be entitled to be granted a Student visa for which you have applied.

    You are invited to give comments/respond to the above information in writing

19. The applicant was given until 12 November 2020 to comment or respond to the information.

20. The applicant attended the hearing on 12 November 2020 by telephone. His education agent, Masri also gave evidence via telephone. He was assisted with an interpreter in the Arabic and English languages. The applicant’s representative did not attend the hearing. The Tribunal indicated that the issues before it is whether he is enrolled in a course of study as required by cl. 500.211 and whether he meets the genuine temporary entrant criteria as required by cl.500.212. It explained these provisions and referred to Direction 69.

21. As to the enrolment issue, the applicant indicated that he is currently enrolled in a course of study. He said he had successfully completed the Advanced Diploma of Marketing and Communication and is about to start studying in the community service area. The Tribunal questioned whether he is enrolled in a course of study as there is no evidence before it that he is. He said he will receive the COE soon. The Tribunal noted it had checked the PRISMS record the day before and it was the same as outlined in the letter sent to him on 7 October 2020 indicating that there is no evidence of current enrolment. He said he is enrolled and he can give the Tribunal the number of his education agent to call and check. He said he only received the certificate of completion for the Advance Diploma of Marketing and Communication a couple of days before and is now waiting for the new COE.

22. The Tribunal asked the applicant about the course he claims he is enrolled in or is to be shortly be enrolled in and he said it is an Advanced Diploma of Community Services and he said he then wants to complete a bachelor’s degree. When asked the name of the education provider with whom he will study the community service degree; he said he will text his education agent. The Tribunal asked him the name of the subjects he will study as part of the Advance Diploma of Community Services and he said he will study about government, customer relations and the economy . When asked on a number of occasions as to details of the course, Advance Diploma of Community Services he repeatedly asked the Tribunal to contact the agent or said he can obtain the information by texting his education agent. When asked when he will start the course he said he can text the agent. He also was unable to provide evidence as to where the campus was he was going to study, other than Sydney. The Tribunal raised with him on a number of occasions that it may expect that a genuine student would be able to provide information as to the course, the education provider, subjects and when the course will start orally at hearing and not have to seek the information from the education agent.

23. Later in the hearing he said he will study at Kaplan Business School and the Tribunal noted that information from the website of Kaplan Business School does not indicate they have any community services courses and raised concern as to whether he is a genuine student. He said he had applied to two places and then referred to the web address of the other school being which he had received from his agent.

24. As to the delay in being enrolled he said he searched to be enrolled when he finished the Advanced Diploma course but could not enrol, so went and saw an education agent and the new education agent is looking for courses. He said the delay is because he only received the completion certificate for the Advanced Diploma course a couple of days ago.

25. As to the value of studying the community services course to his future and why he wants to study the course; he responded that work circumstances are changing and it is required for his future work. The Tribunal asked if he wanted to add anything. He said he wants to study community services and at a higher level and is a genuine student. The Tribunal raised with him that his evidence appeared vague and lacking in detail as to why he wants to study community services. It also noted that his evidence as to his future career aim and why he is studying is inconsistent with evidence he provided to the Tribunal at the 2019 hearing and in written statements to the Department and Tribunal. He repeated that circumstances are changing, and people change career and can have several professions and degrees. He said he is a genuine student and because of the high competition in his home country he needs many certificates. When asked again a to his future carer aim and the relevance of enrolment in the community services course; he said he wants to develop skills.

1. At the request of the applicant, the Tribunal contacted his education agent, Masri by telephone who said he worked for Edugate Gateway – He said the applicant approached him in July and he advised him he needs the completion certificate for his current course to enrol. He said he has organised his enrolment in the Diploma of Community Services. When the Tribunal attempted to ask the witness why the applicant wanted to enrol in the community services course, the applicant interrupted on a number of occasions requesting he ask him not the education agent. The agent then said the applicant said he felt it would benefit his future and what he would like to do. When asked what position would assist a person with qualifications in community service he referred to social services.

2. The Tribunal again asked the applicant why he wished to study this course; he said to improve his English and obtaining certificates would improve his job prospects. He said it will help his future employment as in community services one studies government, politics and the economy and then indicated that there are subjects studied in this area as part of the community services course. The Tribunal noted and referred to the course outline of the Diploma of Community Services at ETEA on the website and noted there were no such subjects in this area and that it prepares a person for social work, and care or services jobs for housing, aged care and community assistance. It raised concern as to his lack of knowledge of the course. He repeated that the situation is changing and competition is high so he needs to change. He said while it is social work they have added new subjects.

3. The Tribunal raised with the applicant via the process outlined in s.359AA the evidence of the witness that the applicant is enrolling in a Diploma of Community Services and then referred to the applicant’s’ evidence that he had said he is enrolling in an Advanced Diploma of Community Services and questioned whether he is a genuine student. He commented or responded orally at hearing and said that he has passed courses enrolled in and is improving his English.

4. He said there are no civil or political reason as to why he cannot return or military commitments in Jordan.

5. He said he has no family in Australia and is not in a relationship in Australia.

6. He said his mother and three brothers live in Jordan.

7. He said he does not own any property in Jordan.

8. As to whether the applicant is a genuine temporary entrant the Tribunal raised a number of concerns, including his length of time in Australia, having arrived in 2007 and only departing on one occasion. It noted that he has been studying for 13 years and now wants to enrol in an 18-month community services course  then a bachelor course. It raised with him of concern that he has been studying only at the vocational level in range of areas since his arrival with little course progression It raised with him that of concern is that he has been studying at a lower level than that achieved prior to his arrival, where he achieved a bachelor’s degree. He indicated he is a genuine student and studying.

9. He said circumstances have changed and to be successful he needs more diplomas and more skills.

10. He referred to emails from the agent regarding his new enrolment, which he said he could provide to the Tribunal and the Tribunal requested he submit these by close of business on the day of the hearing and evidence of enrolment in the form of a COE by close of business on 16 November 2020. It indicated to him that it is of the view he had been provided with reasonable time to provide evidence of enrolment and referred to its letter of 7 October 2020.

11. On 12 November 2020 the applicant provided an email outlining the web address of the provider - >

    The Tribunal wrote him the following after the hearing on 12 November 2020:

    As indicated at the hearing held on 12 November 2020, please provide evidence of emails from your education agent as to attempted enrolment in the community services course by close of business today, 12 November 2020, which you indicated you had and could send the Tribunal. As also advised at the hearing, please provide evidence of current enrolment in a course of study in the form of a COE by close of business on Monday 16 November 2020. As advised by the Tribunal, after this date a decision will be made on the review application.

12. On 16 November 2020 he provided a COE created on 16 November 2020 indicating he is currently enrolled in a Diploma of Community Services at Education Training and Employment Australia (ETEA) from 11 January 2021 to 11 July 2022 and evidence he has paid $250 and $1,500 towards the course.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

    Enrolment

15. Clause 500.211 relevantly requires that at the time of this decision the applicant is enrolled in a course of study: cl.500.211(a). The applicant does not claim to meet any of the alternative criteria in cl.500.211.

16. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.1.03 of the Regulations as a course of education or training provided by an institution, body or person that is registered, under Division 3 of Part 2 of the Education Services for Overseas Students Act 2000, to provide the course to overseas students.

17. As the applicant has provided a current COE indicating he is enrolled at the time of this decision in a course of study, being a Diploma of Community Services, the Tribunal finds that the applicant meets cl.500.211.

    Genuine Temporary Entrant

18. Clause 500.212 requires as follows:

    The applicant is a genuine applicant for entry and stay as a student because:

    (a)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 intends to comply with any conditions subject to which the visa is granted, having regard to:

    (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

    (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

    (c)of any other relevant matter.

19. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

20. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

21. Having considered the applicant’s claims against all the factors specified in Direction 69, 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.

22. 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 Jordan. 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 present as a significant motive not to return. It accepts his evidence as to the benefits of study in Australia on return to Jordan and it accepts his reasons for not studying in his home country. He does not own any property in Australia or Jordan. The Tribunal accepts that his parents and brothers are in Jordan and he no longer has any family living in Australia. It accepts he is not in a relationship in Australia or in Jordan. It accepts that his circumstances in Jordan are indicative of a person who is only a temporary entrant and that these indicate the applicant has an incentive to return to his country.

23. The Tribunal accepts that since his arrival in Australia in 2007 the applicant has been continuously enrolled and successfully completed English courses, a Diploma and Advanced Diploma of Marketing and Communication, Certificate IV in Human Resources, Diploma of Human Resources and Advanced Diploma of Management (Human Resources), Diploma of Marketing, Certificates III and IV in Business, Diploma of Management and Advanced Diploma of Business Management. It accepts he is currently enrolled in a Diploma of Community Services from 11 January 2021 to finish on 11 July 2022 and paid money towards this enrolment. While continuous enrolment and the successful completion of courses are persuasive that the applicant is a genuine student these are but two of many considerations relevant to the assessment of whether the applicant, in regard to the current visa application, intends genuinely to stay in Australia temporarily.

24. The above information indicates the applicant has been in Australia for approximately 13 years since his arrival on a student visa on 12 September 2007 and wishes to remain in Australia until at least July 2022, a further 18 months to complete his studies. He has indicated he is then interested in undertaking a bachelor course which would extend his stay in Australia further. Of concern that the applicant is a genuine temporary entrant and genuine student is that in the almost 13 years that he has been studying in Australia he has been enrolled in and successfully completed courses in a range of  areas including marketing, marketing and communication, human resources, business and management and is now enrolled to undertake a vocational course in community services. This is particularly of concern as he completed a Bachelor of Business Administration degree in Jordan and therefore has been studying at a lower level to that achieved prior to her arrival in Australia. The Tribunal views his length of time in Australia, enrolling in and studying courses at the vocational level in a range of areas, when he completed a higher-level course in Jordan as indicative of a person using the student visa program to maintain migration not as a genuine student.

25. While there may be good reason for it the Tribunal is not satisfied on the evidence before it that he has provided credible evidence as to why he is currently enrolled in the community services course.

26. Firstly, despite recently enrolling in the community services course, claiming he has changed his career, his knowledge of the course he is enrolled in, being the Diploma of Community Services was vague and lacking in detail when repeatedly questioned about the course at the 2020 hearing. This is despite information as to the course being available on the education provider’s website[1]. Firstly, he could not name the course he is enrolled in, indicating he is enrolled in an Advanced Diploma of Community Services whereas he is enrolled in a Diploma of Community Services, as indicated by his education agent at hearing and in his COE[2]. Further, he did not know the name of the education provider until, advised by the education agent by text or other form at hearing. Initially he said he will study the course at Kaplan Business school and when the Tribunal raised with him that the website of that education provider indicates that they do not run community services courses[3] he indicated the current provider correctly. He was unable to name when he will start the course and at which campus, just indicating in Sydney. He was unable to name any of the units he will study , incorrectly claiming some of the units focus on government, politics, and the economy. However as raised with the applicant this is inconsistent with the information provided in the course outline on the education provider’s website[4] as to the units studied. The Tribunal has considered his response that the Tribunal contact his agent, which it did as requested and that he is awaiting information from his agent and cant text his agent for the information requested, which he did, however is of the view that a genuine student would be able to provide information himself without seeking assistance from his agent as to the course he is proposing to study and to enrol in. The Tribunal is of the view that a genuine student, changing their study area for a new career aim, after being in Australia 13 years studying would be able to provide more information than he could when directly asked without reverting to his agent. This is particularly so as the units and components he will study and further information is outlined in detail on the website of the education provider. This leads to the finding that the applicant has enrolled in the community services course to maintain migration and not as a genuine student.

    [1] This inconsistency was raised with the applicant via s.359AA at hearing.

    [3] >

    Further, the applicant’s evidence was vague and lacking in detail as to why he has changed his area of study and career aim to study a community services course. When asked the value of studying the community service course to his future and why he wants to study the course; he responded that work circumstances are changing and it is required for his future work. When the Tribunal asked if he wanted to add anything, he said he wants to study community services and at higher level and is a genuine student. When the Tribunal raised its concern as to his lack of detailed evidence as to the value of the course to his future, he repeated that circumstances are changing, and people change career and can have several professions and degrees. He said he is a genuine student and because of the high competition in his home country  he needs many certificates. He referred to requiring more diplomas. When asked again as to his future carer aim and the relevance of enrolment in the community services course; he said he wants to develop skills. He also said it will help his future employment as in community services one studies government, politics and the economy and then indicated that there are subjects studied in this area as part of the community services course. However, as noted above this is not the case and only after the Tribunal outlined the course focus did he refer to it being a course for care workers and social workers. The Tribunal is of the view that a genuine student would be able to explain consistently why he is undertaking his current area of study and the value of his course to his future, particularly in regard to his career aim. This is particularly so as it is his claim he is changing his future career aim. The applicant’s vague evidence, lacking in detail in this regard leads the Tribunal to not be satisfied that he is undertaking the community service course for any career aim or for any value to his future but rather has enrolled in this course to maintain migration and not as a genuine student.

27. In making this finding it has considered his evidence he has continued to study in Australia to improve his English and achieve conversational English but is of the view if this was the case he would enrol in English courses further, rather than only at the beginning of his study journey in Australia.

28. As to the applicant’s immigration history, besides his length of stay in Australia and having only departed on one occasion, the Tribunal is of the view there is nothing in his immigration record which indicates that he does not genuinely intend to stay in Australia temporarily.

29. In making the decision the Tribunal has considered all the evidence before it, including that he is currently enrolled in the Diploma of Community Services, he has been continuously enrolled and successfully completing courses albeit at the vocational level, his strong family ties in Jordan, and all the evidence he has submitted to support his claim he is a genuine student and genuine temporary entrant; however for the reasons outlined above does not accept he is undertaking the current study for the reasons she claims, but rather using it as a pathway to maintain residence in Australia. 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.

30. 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 69, 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.

31. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

32. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

33. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

    DECISION

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

    Gabrielle Cullen
    Member