Aslam (Migration)

[2018] AATA 3301

Aslam (Migration) [2018] AATA 3301 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Tayyab Aslam

CASE NUMBER:  1618892

HOME AFFAIRS REFERENCE(S):           BCC2016/2879264

MEMBER:Mark Bishop

DATE:15 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 15 August 2018 at 5:48pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Enrolment in a registered course – No evidence of current enrolment – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359C, 499
Migration Regulations 1994 (Cth), r 1.03 Schedule 2 cls 500.211, 500.212

CASES
Hasran v MIAC [2010] FCAFC 40

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 24 October 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 30 August 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 delegate was not satisfied the applicant intended genuinely to stay temporarily in Australia.

4. The applicant provided a copy of the decision record to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. 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?

8. 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.

9. 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.

10. The Tribunal wrote to the applicant on 13 April 2018 requesting information under s.359(2) of the Act in the following terms:

    ·As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

    ·Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

11. The Tribunal advised the information should be provided by 27 April 2018 or the applicant had the right to seek an extension of time. The applicant did not respond within time and did not request an extension of time.

12. The applicant did not respond to this request for information. The applicant did not provide any information to the Tribunal.

13. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. 

14. The applicant provided a GTE statement to the Department as follows:

    -GTE statement in visa application (Df: 5):

    ·He was previously resided in Australia to support his wife to study;

    ·He wants to study in business field after parting ways with his wife;

    ·He wants to take his business in Pakistan to the next step in the next 10 years;

    ·His proposed study will provide him with entrepreneur skills to gain more wisdom in the business field.

    -GTE statement (Df: 10):

    ·He has previously completed humanities studies, claims proposed study will be an added advantage to knowledge already gained;

    ·He believes studying in an international environment in an advanced nation will be a challenging and exciting experience;

    ·He initially planned to support his spouse and study a diploma after her graduation;

    ·Now that he has parted ways with his spouse he plans to complete study in order to further his business in Pakistan;

    ·English, business and leadership and management qualifications will build his employability in the job market;

    ·Australia is safe, affordable and multicultural. Pakistani qualifications and teaching methodologies are not on par with Australian universities;

    ·His proposed study will give the applicant the confidence to start business in a better way.

15. The applicant did not provide a statement to the Tribunal.

16. The decision record outlined the following detail:

    • The applicant arrived in Australia on 23 June 2014 as the holder of a Student Dependent TU-573 visa;
    • He is now divorced. He lodged current theTU-500 application as main applicant;
    • In current application, proposes to study General English, Certificate IV in Business, Diploma of Business and Advanced Diploma of Leadership & Management until 14 June 2019.
    • The delegate noted the applicant provided inconsistent information in the current application. The applicant responded ‘no’ when asked if he has ever had a visa application refused. This response was incorrect. A Student Dependent visa application was refused on 2 October 2013;
    • The applicant did not provide compelling reasons for pursuing education in Australia, considering he already has his own business in Pakistan;
    • The delegate placed weight on documented political and civil unrest in Pakistan and departmental information that showed it is not uncommon for Pakistani nationals to overstay their visas. The delegate was not satisfied the applicant genuinely intended to stay in Australia temporarily. The delegate had serious concerns regarding the applicant’s economic circumstances considering comparatively greater economic opportunities in Australia;
    • The applicant departed Australia on 20 January 2016 and returned on 24 February 2016 as holder of a Student Dependent TU-573 visa. Stated usual occupation as ‘student’ on incoming passenger card and intended stay was six months for the purposes of education. Shortly thereafter, the Department received a copy of applicant’s divorce certificate from Pakistan dated 3 February 2016 meaning applicant was no longer entitled to hold a Dependent Student visa on the date of his return on 24 February 2016.

17. The applicant applied for a Student (Temporary) (class TU) Student (subclass 500) visa on 30 August 2016. It is this application that is currently before the Tribunal for review.

18. The applicant has not provided a Certificate of Enrolment (COE) to the Tribunal. The applicant has not provided any evidence to the Tribunal of current enrolment in an approved course.

19. The applicant has not provided any information to the Department or Tribunal of completion or graduation of any improved courses.

20. As outlined above the Tribunal wrote to the applicant on 13 April requesting information relating to a range of matters. The applicant did not respond to the request for information.

21. The Tribunal has reviewed the delegate’s decision as summarised above. The applicant has not responded to Tribunal requests for information. The Tribunal brings an independent mind to the current review application.

22. The Tribunal requested the applicant to advise whether he had a current Confirmation of Enrolment in an approved course. The applicant did not respond to this request for information. Clause 500.211 is a primary criteria. Clause 500.211(a) of Schedule 2 to the Migration Regulations requires that an “…applicant is enrolled in a course of study”. There is no information before the Tribunal the applicant is enrolled in an approved course or holds a COE.

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

24. 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.

25. '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.

26. There is no evidence before the Tribunal that the applicant is now enrolled in, or has a current offer of enrolment, in any course of study. Therefore the Tribunal is not satisfied that at the time of this decision, that the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

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. For these reasons, the Tribunal concludes that the decision under review should be affirmed.

28. On the basis of the above, 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).

    Conclusion on cl.500.212

29. 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.

30. 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

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

    Mark Bishop
    Member