ALOMELE (Migration)

[2018] AATA 328

ALOMELE (Migration) [2018] AATA 328 (23 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Senyo Kwamla ALOMELE

CASE NUMBER:  1612835

DIBP REFERENCE(S):  BCC2016/1002298

MEMBER:Wendy Banfield

DATE:23 January 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 23 January 2018 at 11:18am

CATCHWORDS
Migration – Student (Temporary)(Class TU) visa –  Subclass 572 – Evidence of financial support not from acceptable individual – No demonstrated access to sufficient funds – Enrolled in study to await outcome of another visa application – No genuine interest in studying – No intention to stay in Australia temporarily

LEGISLATION
Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 572.223, 572.223(1), 572.223(1)(a), 572.223(2)

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 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 to the Department of Immigration for the visa on 9 March 2016. The delegate decided to refuse to grant the visa on 4 August 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the evidence of financial support provided was not from an acceptable individual as required by Schedule 5A of the Migration Regulations. Therefore the applicant did not meet the requirements of cl.572.223(2).

   Background

4. The applicant is a citizen of Ghana and is currently 41 years old. He came to Australia in March 2012 as the holder of a Subclass 457 visa to work as a diesel mechanic. The applicant’s employment was terminated and he later applied for a student visa. The applicant has since married in Australia and in June 2017applied for a partner visa which is yet to be determined.

5. The applicant recently enrolled to study a Certificate IV in Work Health and Safety. He had previously completed Certificate and Diploma courses in Business.

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

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. In addition to not meeting the requirements of cl.572.223(2), the issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223(1). 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)     …

11. 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.

12. 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.

13. In regards to financial sponsorship, the applicant explained that since his employment as a mechanic in Australia was terminated he experienced financial difficulty. When his COE was cancelled and his visa refused, the applicant said he undertook some short courses such as First Aid and Work Safety. He did not provide any further evidence of financial support during his proposed studies as required by the Migration Regulations. The applicant is now enrolled to study a Certificate IV in Work Health and Safety while awaiting the outcome of a Partner Visa application. The Tribunal is not satisfied the applicant has demonstrated he has access to funds sufficient to meet his expenses from an acceptable individual and therefore does not meet the requirements of cl.572.223(2).

14. While the Tribunal accepts the applicant is enrolled in a course of study, he appears to have done so for the purpose of obtaining a Student Visa while he awaits the outcome of a Partner Visa application. The Tribunal is not satisfied the applicant has a genuine interest in studying or that he intends to stay in Australia on a temporary basis.

15. 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.572.223(1)(a).

16. 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

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

    Wendy Banfield
    Member