Dias (Migration)

[2018] AATA 1048

Dias (Migration) [2018] AATA 1048 (25 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mahasinhage Hasitha Nuwan Dias

CASE NUMBER:  1614295

DIBP REFERENCE(S):  CLF2013/252227

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:        25 January 2018 at 12:05 pm (VIC time)

DATE OF WRITTEN RECORD:               19 March 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 19 March 2018 at 1:46pm

CATCHWORDS
Migration – Federal Court remittal – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Paid student fees – No PRISMS record of completed studies –Did not satisfy the Genuine Temporary Entrant requirements

LEGISLATION
Migration Regulations 1994, Schedule 2 cl 572.223 Schedule 8 Condition 8516

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 18 August 2016 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 25 January 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. To be eligible for the grant of a student visa, applicants must satisfy a range of criteria set out in the regulations.

4. You applied for a student visa on 15 March 2013. Your application was refused on 9 December 2013 because the delegate was not satisfied you had provided evidence you satisfied the English Language Proficiency requirements of Schedule 5A.

5. You appealed that decision to the then MRT and were invited to a hearing on 8 May 2014. You did not respond to the hearing invitation and did not attend the hearing and consequently the Tribunal affirmed the decision.

6. You now tell the Tribunal you were unaware of that hearing, your agent did not notify you of it and you say your agent claimed he did not receive the invitation to the hearing.

7. You appealed the MRT decision to the Federal Circuit Court which found the MRT had failed to consider your study history in the PRISMS records referred to in the primary decision and remitted the matter for reconsideration.

8. I make the observation that PRISMS records are not reliable evidence of a student having completed studies. What they show is that the course has finished which means that a student paid fees and the schedule duration of the course has passed. However that was the decision of the Federal Court so it came back.

9. You correctly point out that at that point in time you had completed a Certificate IV in Business which satisfied the English proficiency requirements however the MRT held a further hearing on 23 February 2016. From the evidence provided the Tribunal was satisfied you met the Schedule 5A requirements of Financial Capacity and English language proficiency and so remitted the matter to the Department.

10. The Department further considered the application and on 18 August 2016 refused your application as the delegate was not satisfied you met the Genuine Temporary Entrant requirements and therefore did not satisfy cl 572.223.

11. You appealed that decision to be reviewed by this Tribunal which is the subject of this review, and with your application you included a copy of the Department’s decision.

12. To satisfy 572.223 an applicant must be both a genuine student and a genuine temporary entrant.

13. To be a genuine student you must be engaged in and applying yourself to a meaningful programme of study, progressing academically down an identifiable path.

14. To be a genuine temporary entrant your circumstances must indicate a genuine intention to remain in Australia temporarily.

15. As was explained in the primary decision, when considering if an applicant is a genuine temporary entrant, decision-makers must have regard to what is known as Ministerial Direction No. 53 and the issues in that direction. They were detailed in the primary decision and they include:

    ·     Your circumstances

    ·     The value of your course/s to your future

    ·     Your Immigration history

    ·     Your incentive to stay in Australia or return home

    ·     If you are using the student visa programme to maintain ongoing residence in Australia

    ·     Any other relevant matters

16. It is not meant as a checklist but as a guide for decision-makers to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criteria.

17. The role of the Tribunal is to take a fresh look at your application, consider your circumstances and the issues in Direction No.53 and be satisfied you are a genuine student who intends to stay in Australia temporarily.

18. You told the Tribunal you had read and understood the primary decision which was discussed today in detail. I read from that decision which detailed a range of issues about which the delegate was not satisfied.

19. The decision and its detailed references to the issues of Direction No 53 put your notice of the issues in your case.

20. With the hearing invitation we advised we would assess whether you met the genuine temporary entrant requirements, again putting you on notice of the issues we would consider, and asked you to provide a statement addressing the issues in Direction No. 53.

21. You did not provide a statement however at today’s hearing you answered a number of questions that went to those issues.

22. You were also asked to provide a range of information including evidence of past studies, evidence of current enrolment and an explanation of any gap in studies. 

23. You did not provide the requested evidence however evidence on file shows you have done some previous studies and you have today told the Tribunal you came to Australia with the intention of studying graphic design. Your parents were not keen on that course of study and so you decided to study Information Technology generally. You were unable to get into Swinburne University so you studied a Certificate IV in IT at Box Hill TAFE for six months before deciding you didn’t like it or it was too difficult.

24. You then decided to study Community Welfare Work. You completed those studies which included a significant number of hours of work placement which you did at two separate places on 9 March 2011.

25. Your next studies were when you started a Certificate III in Automotive Mechanical Technology at the Australian Education Academy in August 2011. When asked what you had done between March and August 2011 you said you did some volunteer work one or two days a week at one of the places where you had done work placement but you conceded you did no studies at that time despite the fact you were on a student visa.

26. You completed the Certificate III in Automotive Mechanical Technology and then studied a Certificate IV in Business. You have provided a document from the Australian Education Academy which says you studied that course from 1 August 2012 to 28 February 2013 which would seem right because it is generally a six-month course. However you say you finished that course in August 2013 and they put the wrong date on there because you then have no explanation for not studying for a considerable time after that.

27. You say you stopped studying because the decision was made to refuse your visa application. The Tribunal notes the decision was not made until December 2013 and you say you studied up until August.

28. Interestingly, we asked you to provide evidence of current enrolment. You failed to do that but today you turn up with a Letter of Offer from AEA which is where you’ve done most of your studies, for a Diploma of Automotive Technology, a course you say you have already studied for six months.

29. You provided a letter dated yesterday (24 January 2018). You also provided a document which is a “Letter of Offer” into the same course dated July, but you say again they got it wrong and that’s an error on their behalf.

30. You say you studied a Diploma of Automotive at Acumen, in which you were enrolled between February and October 2016 but you say you stopped studying that course after your visa application was refused on 18 August 2016 and you have not done any study since that time.

31. You initially claimed you did not study when the Department identified a very significant study gap of some two years between December 2013 and February 2016.

32. In your statement, reading from the decision, you declared that after your previous reviews, “my previous migration agent did not inform me that I had study rights and as a result I did not study”.

33. You’ve told the Tribunal you did not believe you were able to study on a Bridging visa without holding a student visa, however clearly that perception was cleaned up and when the decision was made in August to refuse your application you chose to stop studying. When asked why, you said it was because you head was not in the right space and you were thinking about going home.

34. You did some study of Graphic Design before coming to Australia and you came as the holder of a subclass 573 visa granted to enable you to study at the Higher Education Sector level.

35. When that visa expired after some 4 years, you applied for and were granted a further 573 visa however you never studied at that level meaning you were in breach of condition 8516 which requires you to continue to satisfy the requirements of the visa by remaining enrolled in a course for which the visa was granted.

36. When I ask you about that you said that you made a mistake you meant to fill in 572 but filled in 573 in error.

37. You came here over 10 years ago to study computing at the higher education sector level. You have not done those studies rather you have done a Diploma in Community Welfare Work, a Certificate III in Automotive Mechanical Technology and a Certificate IV in Business.

38. You were enrolled in a Diploma of Business on two occasions in 2013 as referred to in the primary decision but have provided no evidence of having studied that course.

39. The Tribunal does not believe your studies are following a defined program. If they were, I believe you would have obtained evidence from Acumen of your previous studies (Diploma of Automotive Technology) which would have entitled you to claim “recognition of prior learning” in your following course.

40. Your movement from one discipline to another on a number of occasions is not the behaviour of a genuine student. I believe you have enrolled in various courses not in pursuit of academic achievement but in an attempt to maintain residence in Australia

41. While I acknowledge you have family back home, which may provide some incentive to return, you appear settled in Australia. You say you have worked for three or four years as an office cleaner and you work a few hours a week as a mechanic. While you say it is your intention to return home, having been here for over 10 years you seek to remain longer. Had you wanted to complete your Diploma of Automotive I believe you could have done so by studying for the six or eight weeks it would have taken to complete after the most recent decision to refuse your application.

42. Your words and your actions seem to be different. The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history

43. You have told the Tribunal that your plans on completion of your study are to return home and open a mechanical workshop. When asked questions about your intended business, it is apparent it is not something to which you have given much thought as you can provide no details. The Tribunal finds you do not have a business plan that is guiding you studies.

44. Having considered your circumstances as a whole, including the issues in Direction No 53, I am not satisfied you are a genuine student who intends to stay temporarily in Australia. Therefore I find you do not meet clause 572.223(1)(a).

45. It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

46. The Tribunal affirms the decision under review.

    Tim Connellan
    Member