Arif (Migration)

[2018] AATA 5433

Arif (Migration) [2018] AATA 5433 (31 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Awais Arif

CASE NUMBER:  1710375

DIBP REFERENCE(S):  BCC2017/116755

MEMBER:Mark Bishop

DATE AND TIME OF

ORAL DECISION AND REASONS:          31 July 2018 at 10:31 am (VIC time)

DATE OF WRITTEN RECORD:                31 October 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa –genuine temporary entrant criterion – maintain enrolment in a fulltime registered course – not enrolled to study – breach of visa conditions 8202 and 8516 – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 500.212, 500.611, Schedule 8
Education Services for Overseas Students Act 2000

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 April 2017 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 31 July 2018 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision in matter number 1710375, the applicant is a Mr Awais Arif. 

4. This is an application, it is an application for review of a decision made by a delegate of the Minister for Immigration on 24 April 2017 to refuse to grant the visa applicant a student temporary class TU subclass 500 visa under section 65 of the Migration Act.

5. Mr Arif, you applied for the relevant visa on 10 January 2017 to undertake study in Australia.  At that time the visa application was lodged the student temporary class TU visa contained two subclasses, subclass 500 for students and subclass 590 for a student guardian.  You applied for the visa to undertake study in Australia and you do not claim to meet the criteria for a subclass 590 student guardian visa.

6. The delegate in your case refused to grant you the visa on the basis that you did not satisfy the requirements of clause 500.212 of schedule 2 to the Migration Regulations 1994 because the delegate was not satisfied that you were a genuine student who intended genuinely to stay in Australia temporarily.

7. On 25 July 2018 the tribunal wrote to the applicant and advised firstly, the tribunal has reviewed your file and will discuss the requirements of clause 500.212(b) with you during the hearing on today's date, Tuesday, 31 July 2018.

8. Clause 500.212(b), which was attached to this letter, requires you to intend to comply with any conditions subject to which the visa is granted. Having regard to your record of compliance with any previous visa conditions and your stated intention to comply with conditions to which the visa might be subject.

9. Three, the tribunal may determine your case on the basis of this issue rather than clause 500.212(a), which was the reason your visa was refused by the department.

10. Four, please be prepared to answer any questions the tribunal may have on this issue and bring any supporting documentation or information you may wish to provide to the tribunal.

11. On 26 July you provided a written statement to the tribunal that advised you failed to complete the first semester and after this commenced to study commercial cookery.  You provided a Certificate of Graduation for this course.

12. You appeared before the tribunal today to give evidence and present arguments. During the course of the hearing the tribunal informed you that whilst a delegate refused you on the basis of not meeting the genuine temporary entrant criteria in clause 500.212(a) the issue before the tribunal today is whether you meet the requirements to comply with visa conditions set out in clause 500.212(b) and that advice, of course, confirmed the letter that had been sent to you well prior to the hearing.

13. On 25 July 2018 the tribunal wrote to you and advised as outlined above concerning the requirements of clause 500.212(b) concerning conditions attached to visas. The tribunal advised you in writing of the requirements of clause 500.212(b), your intention to comply and record of compliance with respect to visa conditions, the determinative nature of clause 500.212(b), and advice from the tribunal that you might be required to answer conditions and you should bring the relevant supporting documentation. You did not respond to this advice.

14. In the course of the hearing the tribunal has raised with you that whilst your visa application was refused the basis that you did not satisfy the genuine temporary entrant criteria the determinative issue before the tribunal today concerns the issue of compliance with visa conditions.  In other words the tribunal has explained to you that the determinative issue, which it is to consider, has changed from whether you satisfy the genuine temporary entrant criteria, which was the issue which led to your visa refusal by the Department of Home Affairs, that is Immigration and Border Protection, to the issue of compliance with visa conditions, which is now before the tribunal.

15. You confirmed to the tribunal that you understood the determinative issue before the tribunal had changed and you offered an explanation.  The tribunal explained to you that it must be satisfied that you are a genuine applicant for entry and stay as a student having regard to your record of compliance with any condition of the visa you have previously held, if any, and your stated intention to comply with any conditions to which the visa may be subject and any other relevant matter.  And the tribunal engaged in extensive discussions with you concerning your record of compliance in the past and your stated intention to comply with the condition in the future.

16. That is the tribunal has explained to you that given repeated breaches of conditions attached to your student visa during your immigration history the tribunal has concerns whether you are a genuine applicant for entry and stay as a student because you intend to comply with any conditions which attach to the visa granted to you.

17. You were originally granted a TU 573 visa to study in the higher education sector in Australia in the period 23 January 2015 until 10 January 2017, a period of almost two years. Conditions 8202 and 5516 were attached to this visa. The most relevant visa conditions are conditions 8202 and 8516. Clause 500.611 in schedule 2 of the Regulations requires these conditions to be imposed on your visa, if granted.

18. Condition 8202 is for applications made on or after 1 July 2016.  As you are not a foreign affairs student, a defence student or secondary exchange student as defined in schedule 8 of the Regulations, condition 8202 requires you to maintain enrolment in a fulltime registered course.

19. Registered course means a course of education or training provided by an institution, body or person that is registered under the Education Services for Overseas Students Act 2000 to provide the course to overseas students. You must also maintain enrolment in a registered course that once completed will provide a qualification from the Australian Qualifications Framework, AQF, that is at the same level as or at a higher level than the registered course in relation to which the visa was granted.

20. Further, condition 8202 requires that you are not certified by your education provider as achieving unsatisfactory course progress or unsatisfactory course attendance in your registered course.

21. Turning now to condition 8516.  Condition 8516 requires that you continue to be a person who would satisfy the primary or secondary criteria as the case requires or the grant of a student visa.  The delegate made a finding that you were not enrolled in an approved course from 16 March 2015 until 26 June 2015.

22. You provided a letter from Holmes Institute dated 28 February 2017.  This letter stated you were enrolled in a Master of Professional Accounting from 16 March 2015 until 26 June 2015.  You did not provide the certificate of enrolment for this limited period of enrolment to the department or the tribunal.

23. The delegate stated he could not find any reference to this alleged enrolment in your PRISMs record.  The delegate made a finding you were not enrolled in the relevant Master of Professional Accounting at this time.

24. Today you advised the tribunal you changed your study from courses in the higher education sector to commercial cookery.  You advised the study in accounting was too hard as it was a different system to your home country.  And the applicant advised you had not applied for a 572 visa at the relevant time because it was too hard.

25. The delegate made a finding you were not enrolled in any approved course on 26 June 2015 until 31 December 2015 and your enrolment in a Graduate Diploma of Business was cancelled on 26 August 2015 for reason of student notifies cessation of studies.

26. In evidence today you advised you had not been enrolled in an approved course from 26 June 2015 until 31 December 2015.  You gave evidence you were enrolled in a Certificate III in Commercial Cookery from 25 January 2016 until 22 January 2017.  You provided to the department a letter of confirmation of enrolment in this course.  Most of this time falls within the period of your TU 573 visa.  Commercial cookery is a course conducted with the VET sector.  Your TU 573 visa requires you to enrol in and remain enrolled in an approved course in the higher education sector.  You have not complied with this requirement.

27. The tribunal asked for an explanation and you advised you decided to go back to the beginning to study at a certificate level prior to studying in the higher education sector.

28. As stated above for the period 16 March 2015 until 26 June 2015 and 28 August 2015 until 31 December 2015 you were not enrolled in an approved course.  In the period 25 January 2016 until 9 January 2017 you were not enrolled in an approved course in the higher education sector.  Hence for almost the entire period of your TU 573 visa you were in breach of relevant conditions attached to that visa.

29. The delegate's decision refers to study breaches as outlined to yourself.  You were invited to respond to the tribunal's concerns in relation to this.  You told the tribunal that you acknowledge that you had not maintained enrolments in the past.  You explained the reasons for these periods of non-enrolment was because it was too hard, the study was too hard in Australia, but you would do so in the future.

30. You advised you are currently enrolled in a Diploma of Hospitality and Management that commenced on 16 July 2018 and is scheduled to conclude on 2 December 2018.  Thereafter you seek to continue studies at advanced diploma level in the field of hospitality and management and you wish to undertake the Diploma of Hospitality and Management that you are presently enrolled in and thereafter will start an advanced diploma in January 2019.

31. In other words in your oral evidence today you did acknowledge that you did breach your visa conditions, however you sought to explain the reasons for your conduct.  You have stated that you intend to comply with all conditions that would be imposed on your visa, if granted.  You gave evidence that you will comply because you now understand the system and will comply with the visa conditions.

32. You have told the tribunal that upon conclusion of the Diploma of Hospitality and Management you would like to commence further study at advanced diploma level.  And you told the tribunal that you had previously had difficulty studying but thought it would be okay in the future.

33. The tribunal has regard to the GTE statement submitted to the tribunal on 26 July 2018, page 28 of the tribunal file, and a further statement provided by you, the applicant, at today's hearing and to the statement provided to the department at page 36 of the departmental file.

34. The tribunal finds that your conduct constitutes a significant and sustained breach of visa conditions 8202 and 8516 and the extent of the breach leaves the tribunal to have grave doubts concerning your stated intention to comply with these mandatory conditions in the future.

35. Ultimately having regard to the length of time that you have been in Australia and the period of time that you have not enrolled in any course or not enrolled in an approved course, the tribunal does not accept as genuine your stated intention to comply with your visa conditions in the future, including the requirements to remain enrolled, which is imposed upon all student visas.

36. Having considered the evidence before it and having regard to all the circumstances, the tribunal cannot be satisfied that you will comply with your visa conditions in the future.  The tribunal cannot be satisfied given your study history that you will remain enrolled as is required by your education provider and you would not be certified by your education provider as having achieved satisfactory course progress.

37. Consequently, the tribunal finds that you do not meet clause 500.212(b). There is no evidence that you have met the alternative criteria for the other subclass of class TU, that is you have confirmed that you do not claim to make your application on the basis of being a student guardian subclass 590.

38. For these reasons the tribunal ha concluded that the decision under review should be affirmed.  The decision of the tribunal is that the tribunal affirms the decision not to grant the applicant a student temporary class TU visa.

    DECISION

39. The Tribunal affirms the decision under review.

    Mark Bishop
    Member