Ali (Migration)

[2018] AATA 5103

Ali (Migration) [2018] AATA 5103 (2 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Omar Ali

CASE NUMBER:  1711489

HOME AFFAIRS REFERENCE(S):           BCC2017/986372

MEMBER:Mara Moustafine

DATE:2 September 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 02 September 2018 at 7:11pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – whether the applicant satisfies the genuine temporary entrant criterion – breached condition 8202– significant gaps in the applicant’s study – vague and shifting evidence regarding current studies – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 23 May 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 first arrived in Australia on 9 April 2011 as the holder of a TU 572 Student visa and was subsequently granted a TU 573 Student visa on 24 July 2013. The applicant applied for a Subclass 500 Student visa on 13 March 2017 to undertake a Bachelor of Business with a prospective visa grant until 15/03/2020.

3. 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.

4. According to the Department decision record, a copy of which was provided to the Tribunal for the purposes of the review, the delegate 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 she was not satisfied that the applicant intended genuinely to stay temporarily in Australia. Among other things, the delegate was concerned about the applicant’s immigration and study history, noting that he breached condition 8202 because he had a series of lengthy gaps in his studies of more than 6 months; the value of the courses to the applicant’s future; inconsistencies regarding his career plans; and his incentive to return home on completion of his study.

5. The applicant applied to the Tribunal for a review of this decision on 30 May 2017.

6. The applicant was assisted in relation to the review by their registered migration agent.

7. The applicant appeared before the Tribunal on 28 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his sister-in-law. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

8. At the hearing the applicant submitted a Statement of Purpose dated 27 August 2018, in which he stated that, since arriving in Australia on 4 April 2011, he had completed English for Academic Purposes (EAP), Certificate IV in Business and a Diploma of Management in December 2015 (completion certificate and academic transcript provided). He attributed the gap in his studies between 03/06/2013 to 24/02/2014 to his difficulty in getting acceptance into a course without release from UWS after he discontinued studying for a Diploma and Bachelor of Engineering; and the gap from 15/04/2014 to 26/02/2015 to his decision after completing a few subjects of an Advanced Diploma of Leadership and Management to change to a Bachelor of Business, which he then dropped as he was unable to pass. He said: “Therefore, I decided to end my educational journey by going back to the advanced diploma of leadership and management and finish this course as the last course I want to study in Australia”. He said he intended to run his father’s construction business in Lebanon. In Australia he has a brother, who is an Australian citizen supports him financially, and a sister studying a higher degree, while his parents and three brothers are in Lebanon.

9. The applicant also submitted documents in support of his claims, including Confirmations of Enrolment (COEs) for Bachelor of Business (16/01/2017 to 13/12/2019), an Advanced Diploma of Leadership and Management ( 24/07/2017 to 04/01/2019) from QIBA, General English ( 06/08/2018 214/09/2018) from ALIF and another Advanced Diploma of Leadership and Management (17/09/2018 to 15/12/2019) from ALIF – the latter two COEs created on around 7pm on 27 August 2018; a statement of employment from ACE Demolition and Excavation stating that he had been employed since 15 May 2017 on a casual basis as a Leading Hand “with a view to progress, with training, to a construction management occupation within the organisation”; a completion certificate and statement of results for a Diploma of Building and Construction (not CRICOS registered), which he indicated in his statement he had acquired through RPL (recognition of prior learning). 

10. The applicant was granted an extension of time to provide additional documents in support of his claims. On 30 August 2018, he emailed the Tribunal as follows:

    Please find attached my transcript from QIBA as you can see I passed all the subjects I studied. I’m getting my subjects assessed with the new college to get credits for the subjects I studied at QIBA in order to save time and study the remaining subjects at the new college ( Australis ) therefore I will finish the course earlier and my final decision is to complete this course as the final course in Australia before going back home.

    
    
    

    Please consider my situation and improvement at the college I know I didn’t pay the fees for the last term at QIBA but that’s because the college was shutting down and they did shut down and no longer operating in Parramatta.

    
    
    

    I passed 7 subjects already from the advanced diploma at QIBA and I’m almost done with the advanced diploma course and left with 5 subjects only so I finished 70% from the course and only 30% remaining .

    
    
    

    Please consider my situation and give me a fair assessment after I improved myself and set myself on the right track. I’ve been attending classes and getting credits and distinctions as shown on the transcript.

    The applicant attached a “Completed Unit Report” generated through VETtrak ( on 30 August 2018, which indicated that the applicant had completed 8 units towards an Advanced Diploma of Leadership and Management between 24/07/2017 and 14/05/2018.      

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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 meets the time of decision criterion in cl.500.212.

13. 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.

    Does the applicant intend genuinely to stay in Australia temporarily?

14. 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.

15. 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.

16. At the hearing, the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion, noting that the primary purpose of a Student visa was for an applicant to study and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in Lebanon and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 4 above.

17. The applicant told the Tribunal that, since arriving in Australia in 2011, he had completed three registered courses: EAP, Certificate IV in Business and a Diploma of Management, the last of these in December 2015. He said that he then studied an Advanced Diploma of Leadership and Management at QIBA for a year until three months ago when their college at Parramatta closed, then moved to another college to continue the course. He was currently enrolled and had been studying the Advanced Diploma of Leadership and Management at the new college for a couple of weeks. On completion, he intended to study a Bachelor Business.

18. As discussed with the applicant, the Tribunal is not satisfied that completion of just three Vocational Education and Training courses in seven years represents a level of academic progress consistent with the purpose of a Student Visa. Moreover, the applicant provided no evidence of any academic achievements in the two and a half years since he completed his Diploma of Management, which was awarded in December 2015.

19. While the applicant told the Tribunal that he had been studying an Advanced Diploma of Leadership and Management at QIBA, which he stopped three months ago because the college closed its Parramatta campus, this was inconsistent with information from his Provider Registration and International Student Management System (PRISMS) record, which indicated that his COE for the Advanced Diploma of Leadership and Management at QIBA had been cancelled in May 2018 due to non-payment of fees. It also indicated that prior to that, the applicant had shifted providers for the same course earlier in 2017 and that in 2016 his enrolment in an Advanced Diploma Management had been cancelled due to non-commencement of studies. The Tribunal drew this information to the applicant’s attention in accordance with s.359AA of the Act, noting that it raised doubts about his truthfulness and credibility. The applicant responded that he had studied at QIBA, as shown by his Confirmation of Enrolment and did not know why his agent had not paid the fees, suggesting it may have been as a result of the college at Parramatta closing. He requested an additional two days to provide evidence of his studies in the Advanced Diploma course from QIBA, to which the Tribunal agreed.

20. The Tribunal has had regard to the information provided by the applicant (paragraph 10 refers). It notes that the report did not come from the education provider, QIBA, but was sourced from a VETtrak website, whose status is unverified. Even if the Tribunal were to accept at face value that the applicant completed 8 units towards an Advanced Diploma of Leadership and Management between 24/07/2017 and 14/05/2018, it does not explain what the applicant was studying in the year and a half between December 2015 and July 2017.

21. This compounds the Tribunal’s concern about the significant gaps in the applicant’s study, which he himself confirmed in his Statement of Purpose (paragraph 8). The applicant attributed these gaps to his difficulty in finding an education provider that would accept him without release from UWS and, at hearing, also referred to problems with his leg. However, as discussed with the applicant at hearing, his difficulties in gaining a new enrolment probably stemmed from his switch from a higher degree course, for which his original visa was granted, to a Vocational Education and Training level course. Moreover, if his medical condition interfered with his studies, it would have been appropriate to seek a deferral of his course or return to Lebanon. In the Tribunal’s view, the applicant’s immigration and study history raises serious concerns as to his future compliance with visa conditions. 

22. Further, the Tribunal is concerned at the applicant’s vague and shifting evidence at hearing regarding his current studies. He initially claimed that he had been studying the Advanced Diploma of Leadership and Management at the new college for a couple of weeks. However, when the Tribunal pointed out that the COE he submitted indicated that the course was only due to commence on 17 September 2018, he responded that he was studying English first so he would not have another gap in his studies. In light of this shifting evidence, and the fact that the applicant was not enrolled in any course from the time his visa was cancelled in May 2018 until the evening before his hearing when his current COEs were created, it is the Tribunal’s view that the applicant has re-enrolled in these courses for the purpose of his review, rather than any genuine intention to study.

23. Also of concern is the inconsistency in the applicant’s evidence regarding his study intentions in Australia.  He told the Tribunal on 28 August 2018 that, after completing the Advanced Diploma of Leadership and Management, his intention was to undertake a Bachelor of Business before returning to Lebanon, which would extend his time in Australia for another three years.  Yet in his statement, signed just a day earlier, he stated that the Advanced Diploma would be his last course in Australia, a point he reiterated in his post-hearing email (paragraph 10). 

24. In weighing up his circumstances in Lebanon and Australia, the Tribunal is not satisfied that the applicant has significant incentive to return home on completion of his studies. By his own evidence at hearing, he has two brothers who are Australian citizens and a sister studying at UWS and his father has visited the family in Australia. While the applicant has family ties to his parents and brothers in Lebanon, the Tribunal is not satisfied that in themselves these ties constitute a strong incentive to return and notes his evidence that he has not been back in Lebanon since 2013.  While the applicant stated that he plans to return to Lebanon to run his father’s construction business or a construction company in the Gulf, he confirmed that he did not have a concrete job offer. By contrast, in Australia he has been working in his brother’s company for over a year with prospects of future employment in construction management with the company.

25. 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 the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

26. 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.

27. 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

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

    Mara Moustafine
    Member