Ashrafee (Migration)

[2016] AATA 1405

Ashrafee (Migration) [2016] AATA 1405 (7 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Rafiquzzaman Ashrafee

CASE NUMBER:  1502611

DIBP REFERENCE(S):  BCC2014/3570995

MEMBER:Antonio Dronjic

DATE:7 April 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 07 April 2016 at 2:57pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Whether the applicant is a genuine applicant for entry and stay as a student – Extended period spent not studying – Higher qualification obtained previously – Lack of academic progress – Various short and unrelated courses undertaken – Decision affirmed

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

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. Where used in this decision:

   a.COE refers to Certificate of Enrolment in a course of study;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.GTE refers to Genuine Temporary Entrant.

3. The applicant applied to the Department of Immigration for the visa on 29 December 2014. The delegate decided to refuse to grant the visa on 2 February 2015. 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).

4. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 (1)(a) of Schedule 2 to the Regulations because the delegate found that the applicant was not a genuine applicant for entry and stay as a student.

5. The Tribunal received a review application from the applicant on 23 February 2015. It was accompanied by a copy of the delegate’s decision. The delegate noted that the applicant first arrived in Australia on 17 April 2009. Since his arrival, he completed a Diploma in Hospitality (that included Certificate III and IV in commercial cookery). The delegate further noted that the applicant was not enrolled in any studies during the period from 1 February 2013 to 18 January 2015.

6. In his response to the invitation made by the department to provide information that he meets GTE criterion, the applicant stated that his mother was hospitalised in July 2012 following a heart attack; that in 2013 he travelled to Bangladesh and became aware that his wife was having an extramarital affair and that in August 2014 he suffered a mild stroke. He stated that these events influenced his ability to concentrate on his studies in Australia.

7. With its hearing invitation letter, the tribunal invited the applicant to provide:

   ·A copy of the applicant’s current Certificate of Enrolment (COE) as required for the grant of a student visa;

   ·Documents that show that the applicant is currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa;

   ·Documents that show the applicant’s past studies in Australia, including copies of all attendance certificates, academic transcripts and certificates of completion as well as documents evidencing any work related to the applicant’s past or intended studies in Australia; and

   ·An explanation of any gaps in the applicant’s enrolment/s and any documentary evidence relevant to the applicant’s explanation.

8. On 1 March 2016, the applicant’s representative submitted the following documents to the Tribunal:

   ·Patient history summary from Footscray Central Pharmacy together with various prescriptions for medication;

   ·Letter from Dr Uddin  dated 25 November 2013;

   ·Copy letter from Ibrahim Cardiac Hospital dated 19 July 2012, as evidence of the applicant’s mother’s medical condition;

   ·Copy Certificate III in Hospitality completed by the applicant on 17 July 2011;

   ·Copy Certificate IV in Hospitality completed by the applicant on 29 January 2012;

   ·Copy Diploma of Hospitality completed by the applicant on 1 July 2012;

   ·COE for Certificate IV in Business set to commence on 1 September 2012 and finish on 15 September 2012;

   ·COE for diploma in Management set to commence on 1 April 2013 and finish 30 September 2013;

   ·COE for an Advanced Diploma in Management set to commence on 15 November 2013 and finish on 30 October 2014;

   ·COE for an Advanced Diploma ion Marketing set to commence on 21 March 2016 and finish on 17 March 2017;

   ·Letter from the applicant’s auntie dated 20 December 2010;

9. The applicant appeared before the Tribunal on 3 March 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent.

10. The applicant is 46 years of age, male national of Bangladesh. His wife, two children, one sister and mother all live in Bangladesh. He does not own significant property in Bangladesh. Before arriving in Australia in April 2009, he had completed a Bachelor of Arts Degree in 1994. He claims that he had a restaurant in Bangladesh from 2002 to 2006. He also claims that he worked for a stock exchange company from 1994 to 2002. These claims were not substantiated with documentary evidence.

11. His intention, upon arriving to Australia was to complete a Diploma in Hospitality and return to Bangladesh where he intended to open his own restaurant that will serve European food.

12. He confirmed that, by 1 July 2012 he successfully completed Diploma in Hospitality (which included Certificate III and IV in commercial cookery). He gave evidence that he was also enrolled into Certificate IV in Business Management; Diploma in Business Management and an Advanced Diploma in Business Management but that he did not complete any of these courses.

13. He gave evidence that his mother suffered from a heart attack in July 2012; that in October 2013 he travelled to Bangladesh where he stayed for a period of 6 weeks. He stated that at the time he believed that wife was having an extramarital affair and that in August 2014 he suffered a mild stroke. For these reasons, he was unable to concentrate on his studies. He acknowledged that he did not study in Australia for a period of three and a half years and that he did not ask the educational providers to defer his studies. He provided no explanation as to why he did not seek to defer his studies.

14. He stated that he is currently enrolled into Diploma in Marketing (from 19 January 2015 to 15 January 2016) and an Advanced Diploma in Marketing (from 21 March 2016 to 17 March 2017). He confirmed that he obtained a COE for an Advanced Diploma in Marketing on 18 February 2016, after he received the hearing invitation letter from the Tribunal. He stated that he has completed eight subjects of his current course. He is and has been working as a cook in Australia.

15. He stated that in Bangladesh he could not study Diploma in Marketing Course as there are only private institutions where he can do so. I noted that he is paying for his studies in Australia. He stated that he has no intention to stay in Australia permanently.

16. On his request, I granted the applicant additional time until 10 March 2016 to provide evidence of his current studies and other documentary evidence he intends to rely upon.

17. On 9 March 2016, the applicant submitted the following documents:

    ·COE for a Diploma ion Marketing course set to commence on 21 March 2016 and finish on 17 March 2017;

    ·Completion letter from Victorian Institute of Culinary Arts and Technology (VICAT) dated 8 March 2016 as evidence that the applicant successfully completed Diploma ion Marketing course on 15 January 2016 (with the copy statement of results and Diploma)

    ·Confirmation from VICAT that the applicant is enrolled into an Advanced Diploma in Marketing;

    ·Copy discharge summary from Western Health Hospital as evidence that the applicant was admitted to and discharged from the hospital on 26 August 2014;

    ·Psychological Assessment and Psychological Report dated 1 March 2016 from Mr Edwin Kleynhans as evidence that the applicant personal issues and medical condition affected his ability to study in Australia from 1 February 2013 to 18 January 2015; and

    ·Tax Invoices as evidence that the applicant consulted Mr Edwin Kleynhans on nine occasions from 4 February 2015 to 26 February 2016.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

20. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. 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)     …

21. 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.

22. 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.

23. Having regard the applicant’s stay of seven years in Australia, the number of courses he commenced and cancelled, educational achievements, considerable gaps in his studies and diverse fields of education is pointing clearly to the factors in the Minister’s Direction No.53.

24. Based on the evidence before me I find that, in seven years of being a Student visa holder, the applicant completed only Diploma in Hospitality (which included Certificate III and IV in commercial cookery) and most recently a Diploma in Marketing course.

25. I have considered the applicant’s academic qualifications and how they relate to his stated career path. He changed courses and career paths from Hospitality to Marketing field, some courses were relatively short and relatively inexpensive. I find that the applicant’s decision to study Diploma in Hospitality after completing the Bachelor of Commerce Arts degree in Bangladesh was irrelevant to his previous qualifications. Similarly, I find that his decision to study Diploma and Advanced Diploma in Marketing is not related or relevant to his previous studies in Bangladesh or Australia.

26. According to his oral evidence, the applicant was enrolled into Certificate IV in Business Management; Diploma in Business Management and an Advanced Diploma in Business Management courses but has failed to complete any of them.

27. I find that significant gap in the applicant’s studies occurred from July 2012 to January 2015 when he commenced studding a Diploma in Marketing course. I carefully considered medical evidence provided in support of the applicant’s claim that he was unable to concentrate on his studies because of personal issues with his wife, his mother’s illness and his own health problem in August 2014. I had regard to Psychological Assessment and Psychological Report dated 1 March 2016 from Mr Edwin Kleynhans and I accept the applicant’s diagnoses contained therein. I accept that the applicant’s personal issues and medical condition affected his ability to study. However, he did not seek to defer his studies and has not completed any course during the period of more than three years.  

28. I acknowledge that the applicant has strong links to Bangladesh having his wife and children living there. The applicant is and has been working in Australia and, considering his limited academic achievements, it appears that maintaining employment in Australia is one of the reasons for maintain ongoing residence in Australia.

29. My concern is that he is applying for a student visa to circumvent the migration program and to maintain ongoing residence and employment in Australia. Remaining in Australia is a legitimate aspiration for many international students after completing their studies in Australia. The appropriate way in which to explore such an option is through seeking a different visa to remain in Australia temporarily or permanently. The continued use of the student visa when it rises reasonable questions regarding the genuine student criterion is not.

30. I have formed the view that the applicant has undertaken and is now proposing to undertake relatively short and inexpensive courses for the purpose of maintaining ongoing residence in Australia.

31. 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).

32. 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

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

    Antonio Dronjic
    Member