AKHUND (Migration)

[2018] AATA 2448

AKHUND (Migration) [2018] AATA 2448 (18 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD RAZA AKHUND

CASE NUMBER:  1619668

HOME AFFAIRS REFERENCE(S):         BCC2016/2976404

MEMBER:Wendy Banfield

DATE:18 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 June 2018 at 11:06pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine non temporary entrant – Study history – Changes in courses – Poor academic performance – Reliance on advice of a migration agent – Access to funds – Current Certificate of Enrolment not provided –  Seeking to apply for a partner visa  – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 500.111, 500.211, 500.212
Education Services for Overseas Students Act 2000 (Cth)

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 2 November 2016 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 7 September 2016. 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 delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the criteria of genuine temporary entrant for study was not met.

   Background

4. The applicant is a citizen of Pakistan and is currently aged 25. He came to Australia on 26 April 2013 as the holder of a Subclass 573 student visa to study a Bachelor of Business. Since arriving in Australia the applicant completed an English course and a Diploma of Management. He was enrolled to study a Bachelor of Business (Accounting) at the time of application but that enrolment has been cancelled. The applicant has married an Australian citizen and applied for a Partner visa which was yet to be determined at the time of the Tribunal hearing.

5. The applicant appeared before the Tribunal on 22 March 2018 to give evidence and present arguments.

   Evidence of the visa applicant

6. The applicant gave evidence about his study history in Australia. He began his Bachelor of Business course then changed to Accounting but was unable to pass his subjects. The applicant declared that when he applied for a student visa off-shore he had been inexperienced and relied on the advice of an agent who applied for everything for him.

7. In December 2013 the applicant was told he would be excluded from college if he continued to fail. He then sought advice from an onshore agent who sent him to study IT, even though the applicant said he knew nothing about the subject. The applicant said he was reported to immigration as he could not afford the course fees. He said twice he has been reported due to fees because of the cost of living in Sydney. The applicant said although he attended and submitted assignments he was not able to pass the course. He then went to another consultant and was referred to another college. He completed a Diploma in Business Management and was advised to do an Advanced Diploma to obtain credit for a Bachelor degree.

8. The applicant said in the middle of the Advanced Diploma he was directed by the agent to go to Kings College and take a Bachelor of Accounting, which the applicant had already attempted and failed. The applicant said after that his visa was rejected and by that time, he knew the rules and realised he should not have left the Advanced Diploma. He said he was then unable to obtain admission in any college because of the arrangements they have with education agents. The applicant said education consultants are just using international students for commissions.

9. According to the applicant he was upset and disappointed because his parents have borrowed money to support him. After that the applicant said he discontinued his studies and got married, he and his wife had a baby and he has been busy helping her. He said at the moment he is doing nothing but he wants to return to the Advanced Diploma course when he can afford it. The applicant declared his long term plans are to open a restaurant or coffee shop.

10. The applicant has applied for a partner visa which is yet to be determined. He said his wife does not want to go to Pakistan as she feels safer in Australia. The applicant added that he told the consultant he was planning to get married and apply for a partner visa but he was advised not to do so but to continue studying. He said he stopped studying because the agent was only advising him to continue in order to get a commission. The applicant explained what he has since learnt about agents and their relationships with certain education providers.

11. The Tribunal explained to the applicant that he is not currently enrolled which is a requirement for the grant of the visa. The applicant said he wants to go back to college in Parramatta but because he left when his visa was rejected, he is unable to re-enrol. The applicant was asked about having entered Australia as the holder of a Subclass 573 higher education visa but not maintaining enrolment at that level. The applicant said the Department should not allow students to enrol in a college at a lower level since the education provider advices them about it. The Tribunal explained that it is expected applicants will be aware of their visa conditions and are required to comply with those conditions. The applicant said his English was not good and he relied on the advice of agents.

12. The applicant asked what his chances are of being granted a visa and the Tribunal explained again to the applicant that he has to be enrolled in a course of study to be eligible for a student visa. He said he still has to pay the agent in order to continue at the same college. The applicant reiterated that overseas students are being taken advantage of by education and migration agents.

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. The issue in the present case is whether the applicant is enrolled in an approved course of study as required for the grant of a student visa.

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. On 5 January 2018 the applicant was invited to attend a hearing scheduled for 30 January 2018. The applicant sought a postponement of the hearing due to a family emergency and the hearing was rescheduled. On 27 February 2018 the applicant was invited to attend a hearing on 22 March 2018. Both invitations asked the applicant to provide a copy of a current Certificate of Enrolment (COE) or other documents that show he is currently enrolled in a course of study as defined in cl.500.111 of the Migration Regulations 1994. The applicant was advised that a COE is required for the grant of a student visa. The applicant did not submit a COE prior to the hearing as requested.

18. The applicant gave evidence at the hearing about his personal circumstances, his study history and his plans to continue an Advanced Diploma course once he is able to pay the required fees. The applicant submitted that during his time as a student in Australia he had relied on advice provided by agents who appeared to be motivated by their relationships with education providers. He claimed that he was given incorrect and misleading advice which led to him enrolling in unsuitable courses of study and changing his enrolment without completing courses. The applicant told the Tribunal he had not been aware of his obligations to maintain enrolment at a higher education level and had not been able to re-enrol in an Advanced Diploma after his visa was refused because he had discontinued the course.

19. The Tribunal sympathises with the applicant but as explained during the hearing, it is expected that applicants will be aware of their obligations as students in Australia, particularly the requirement to maintain enrolment, and that they will comply with the conditions imposed on their visa.

20. At the Tribunal hearing on 22 March 2018 the applicant was advised several times that in order to be eligible for a student visa he must be enrolled in an approved course of study at the time of decision. The applicant said he discontinued studying when his visa was refused by the Department and he was then occupied by his marriage and the birth of a child. Unfortunately he was unable to provide evidence of enrolment or other documents that show he is enrolled in an approved course of study.

21. For this reason the Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

22. 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

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

    Wendy Banfield
    Member