Chamouroudis (Migration)

[2019] AATA 2211

Chamouroudis (Migration) [2019] AATA 2211 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vasileios Chamouroudis
Ms Anastasia Kiourtsidou

CASE NUMBER:  1610441

DIBP REFERENCE(S):  BCC2016/1573462

MEMBER:Michael Ison

DATE OF ORAL DECISION:  28 February 2019

DATE OF WRITTEN STATEMENT:         28 February 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 28 February 2019 at 4:28pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – enrolment status – not enrolled in a course of study – genuine temporary entrant – immigration history – not a genuine tourist – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 572.223, 572.231

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 on 5 July 2016 to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 April 2016 to undertake study in Australia. At the time the visa application were lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student 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), or whether the applicant has the support of the relevant Minister (Subclass 576).

3. The delegate in this case refused to grant the visas on the basis that the primary visa applicant (the applicant) did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate found the applicant was not a genuine temporary entrant into Australia to study.

4. The Tribunal gave its decision on the review at the conclusion of the hearing held on 28 February 2019. The following are the reasons for that decision.

5. The applicants appeared before the Tribunal on 28 February 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Greek and English languages.

6. The applicants were represented in relation to the review by a lawyer and registered migration agent up until, according to the applicant, a week before the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue before the delegate was whether the applicant met the criterion in 572.223(1)(a). However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

9. With limited exceptions, cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 of the Regulations require that at the time of decision an applicant must be enrolled in, or be the subject of a current offer of enrolment in, a course of study that is a principal course, and is of a type specified under r.1.40A for the subclass at the time of application. This requirement does not apply to certain ‘eligible higher degree students’, ‘eligible university exchange students’, and ‘eligible non-award students’. There is no evidence before the Tribunal that that the applicant is an eligible higher degree student as defined in cl.573.111 and 574.111 respectively, or an eligible university exchange student or eligible non-award student for the purposes of Subclass 575 as defined in cl.575.111.

10. The Tribunal shared potentially adverse information with the applicant in accordance with the procedure set out in s.359AA of the Act being information in the applicant’s Provider Registration and International Student Management System (PRISMS) record, including by providing the applicants with a copy of the applicant’s PRISMS record. The Tribunal explained to the applicants what PRISMS is and how the information in it is compiled. The Tribunal particularised the information in PRISMS as showing that since the applicants arrived in Australia on 11 February 2016 PRISMS records that the applicant’s enrolment in the courses below have “finished”, recording the applicant’s last enrolment as finishing on 3 December 2017 and not recording any further enrolments for the applicant since then:

    ·Certificate IV in EAL;

    ·Certificate III in Business; and

    ·Certificate IV in Business.

11. The Tribunal explained to the applicants that the information in PRISMS is relevant to their review because it is a requirement for the grant of a Student visa that the applicant must be enrolled in a registered course or have an offer of enrolment. If the applicant is not enrolled and does not have an offer of enrolment then the applicant cannot meet the primary requirement in clause 572.231 of Schedule 2 to the Regulations and therefore cannot be granted a Student visa.

12. The applicant confirmed he understood why the information in PRISMS is relevant to the applicants review.

13. The Tribunal explained to the applicants the consequence of the Tribunal relying on the information in the applicant’s PRISMS record is that if the Tribunal finds the applicant is not currently enrolled in a registered course or does not have an offer of enrolment then the Tribunal will be compelled to find that the applicant does not meet the primary requirement in cl.572.231 for the grant of a Student visa. Therefore, the Tribunal explained, if the applicant is not currently enrolled or does not have an offer of enrolment that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review to refuse to grant the applicant a Student visa.

14. The applicant confirmed he understood the consequences of the Tribunal relying on the information in his PRISMS record.

15. The Tribunal invited the applicant to comment upon or respond to the potentially adverse information but first offered the applicant additional time to consider the potentially adverse information before commenting upon or responding to that information. The applicant did not request additional time.

16. The applicant told the Tribunal he has completed only the Certificate IV in EAL but has not been given a completion certificate by his education provider. The Tribunal notes that there is no independent evidence before it of the applicant having completed this course given the information in PRISMS is inconclusive.

17. The applicant asked the Tribunal to clarify what an ‘offer of enrolment’ means, which the Tribunal did, including by distinguishing that term from the term ‘enrolled’.

18. The applicant confirmed he is not enrolled in a course of study and does not have an offer to enrol. The Tribunal accepts this evidence.

19. The applicant explained to the Tribunal that he and the dependent applicant came to Australia on Subclass 601 visas but with the intention of staying in Australia for the applicant to study because they were advised by the “Hellenic community” that they needed to be in Australia to obtain a Student visa. When the Tribunal pointed out that in applying for the Subclass 601 visa they would have had to declare the purpose of their visit to Australia, the applicant replied that they were given the wrong information and followed the steps they were instructed to. The Tribunal finds on the applicant’s evidence that the applicants deliberately misled the Department about their true intentions in travelling to Australia when applying for and being granted Subclass 601 visas.

20. The applicant explained to the Tribunal the purpose of his intended study in Australia and his plans for the future, particularly for his electrical contracting business in Greece. The applicant also explained the applicants’ strong connections back in Greece, including his two teenage children from his first marriage, and their clear intent to return at the end of his study. The Tribunal accepts this evidence of the applicants circumstances in Australia but makes no findings in relation to the primary applicant’s intentions as the applicant’s credibility was an issue of concern for the Tribunal given his evidence of both applicants having deliberately misled the Department when applying for and obtaining their Subclass 601 visas to come to Australia.

21. The applicant explained the difficulties the applicants had encountered in Australia following the birth of their daughter on 19 January 2018 with the dependent applicant suffering ongoing postpartum depression and the applicant needing to look after the health of the dependent applicant whilst also being the primary carer for their daughter. As a result the applicant’s evidence was he was only able to work very limited hours to earn an income to help meet the costs of the dependent applicant’s treatment and raising their daughter. The Tribunal accepts this evidence.

22. The applicant told the Tribunal that soon after arriving in Australia the applicants engaged a specific lawyer and registered migration agent on the advice of the Hellenic community. The applicant said the lawyer lodged his Student visa application and he blames the lawyer for that application being rejected by the delegate. Following their appeal to the Tribunal the applicant’s evidence is he asked the lawyer many times what they needed to do in relation to their Student visa applications but the lawyer did not get back to them and he feels the lawyer’s goal was only to take their money and the lawyer did not give them the right instructions and steps to follow.

23. The applicant’s evidence is he was not aware until the Tribunal hearing that he needed to be enrolled or have an offer of enrolment to be eligible to be granted a Student visa. The applicant told the Tribunal the lawyer asked for a significant amount of money to represent the applicants at the Tribunal hearing but they could not afford that and so withdrew their instructions for the lawyer to act for them in the week before the hearing.

24. The applicant told the Tribunal he spoke to his education provider about enrolling in further English courses and then business courses but his education provider told him he could not ‘register’ with them until he had been granted a Student visa. The applicant’s evidence is his education provider did not mention being able to make him an offer of enrolment.

25. The Tribunal notes that there were multiple postponements of the hearing of this application first due to the birth of the applicants’ daughter and then due to the dependent applicant’s ongoing illness. The applicants were first invited to appear before the Tribunal on 24 January 2018 by letter dated 16 November 2017. That letter stated in two places that the applicant needed to provide documents to the Tribunal showing he was currently enrolled in a course or has an offer of enrolment “as required for the grant of a Student visa”.[1]

    [1] Tribunal file, folios 18 to 26 at folio 25 (back).

26. The Tribunal finds the applicant has been informed since at the latest 16 November 2017 of the need for him to be enrolled or have an offer to enrol in a registered course of study to be eligible to be granted a Student visa. The Tribunal notes that the applicant has had access to specialist legal and migration advice since shortly after arriving in Australia and also spoke to his education provider about further study.

27. The Tribunal shared potentially adverse information with the applicants in accordance with the procedure set out in s.359AA of the Act being information in the applicant’s movement records. The Tribunal explained to the applicants what their movement records are and how the information in those records is compiled. The Tribunal particularised the information in the applicant’s movement records as showing that the applicant arrived in Australia on 11 February 2016 on a Subclass 601 visa that was valid until 11 May 2016 but instead of returning to Greece applied for a Subclass 572 Student visa on 27 April 2016. The information also shows that since arriving in Australia three years ago the applicants had not returned to Greece until 10 February this year and then returned for only two weeks.

28. The Tribunal explained to the applicants why this information is relevant to their review as being because it may indicate to the Tribunal that the applicant did not come to Australia on the Subclass 601 visa as a genuine tourist but came to Australia with the intention of obtaining a Student visa so that the applicants could maintain residency in Australia for as long as possible contrary to the intentions of Australia’s migration program. In addition, the Tribunal told the applicants the information could indicate that by having returned to Greece for only two weeks in the three years the applicants have been in Australia they do not have significant incentive to return to Greece and are well settled in Australia such that they have strong incentive to continue to reside here.

29. The applicant confirmed he understood the relevance of this information to the applicants review.

30. The Tribunal explained the consequences for the applicants of the Tribunal relying on the information in the applicant’s movement records as being that the Tribunal could form the view that the applicant is not a genuine student and does not genuinely intend to stay in Australia temporarily but will say and do whatever the applicant feels is necessary to achieve the migration outcome the applicants seek, which the Tribunal could form the view is ongoing residence in Australia. The Tribunal explained that if it formed these views then that would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review to refuse to grant you a Student visa.

31. The applicant confirmed he understood the consequences of the Tribunal relying on the information in his movement records.

32. The Tribunal invited the applicant to comment upon or respond to the potentially adverse information but first offered the applicant additional time to consider the potentially adverse information before commenting upon or responding to that information. The applicant did not request additional time.

33. The applicant explained to the Tribunal why the applicants had not returned to Greece earlier and the difficulties they had as a family in returning to Greece. The Tribunal accepts this evidence.

34. The dependent applicant explained to the Tribunal that of course the applicants came to Australia just to study but they have both of their families in Greece, the applicant’s business is in Greece, they are far from home, she does not have all the help she needs with their daughter and they do not intend to stay in Australia forever and don’t really have a reason to stay here once the applicant completes his study. The Tribunal accepts the evidence of the applicants circumstances in Australia but makes no findings in relation to the primary applicant’s intentions as both applicants credibility was an issue of concern for the Tribunal given their separate evidence of both having deliberately misled the Department when applying for and obtaining their Subclass 601 visas to come to Australia.

35. The Tribunal explained to the applicants that:

    ·the determinative issue at the time of the delegate’s decision was whether the applicant was a genuine temporary entrant into Australia to study in accordance with the requirements of cl.572.223(1)(a);

    ·given the applicant’s evidence in response to the information in his PRISMS record, the determinative issue before the Tribunal had changed; and

    ·the determinative issue for the Tribunal was now whether the applicant was enrolled in a registered course of study or had an offer to enrol in accordance with the requirements of cl.572.231.

36. The applicant acknowledged that he understood the determinative issue had changed and what the determinative issue was now before the Tribunal.

37. The Tribunal then asked the applicants whether there were any other relevant matters they wished to raise with the Tribunal. The dependent applicant declined to do so. The applicant re-stated the applicants’ circumstances in Australia, his desire and the importance of him being able to complete further study in Australia, the applicants’ law abiding natures and the failure of their lawyer, in the applicant’s view, to properly advise them. The Tribunal has taken this evidence into consideration.

    Conclusions

38. The evidence before the Tribunal is that the applicant is not enrolled in, and does not have a current offer of enrolment in any applicable course of study. Therefore cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 are not met.

39. Furthermore, there is no evidence that the applicant meets the criteria for either a Subclass 576 (AusAID or Defence Sector) or Subclass 580 (Student Guardian) visa, the remaining subclasses of Class TU. The applicant is neither supported by the relevant Minister as required by cl.576.229, nor has made the visa application on the basis of being a Student guardian.

40. For these reasons, the decision under review must be affirmed.

    Application of Ms Kiourtsidou

41. As the Tribunal has found that the primary applicant does not meet the requirements of clauses cl.570.232, 571.232, 572.231, 573.231, 574.231 and 575.231 this means that the secondary (or dependent) applicant does not satisfy the requirements of clauses 570.322, 571.322, 572.322, 573.322, 574.322 and 575.322 as the secondary criteria for dependent applicants all require that the secondary applicant must be a member of the family unit of a person (the primary applicant) who has satisfied the primary criteria for the grant of a Student visa.

    DECISION

42. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Michael Ison
    Senior Member