ELTAWIL (Migration)

[2018] AATA 3162

ELTAWIL (Migration) [2018] AATA 3162 (2 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hesham Anwar Saad EL TAWIL

CASE NUMBER:  1708394

HOME AFFAIRS REFERENCE(S):           BCC2016/3924583

MEMBER:David Barker

DATE:2 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2018 at 12:19pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine student – Gap in study – Physically and medically impacted by injuries from a motor vehicle accident – Maintained paid employment in Australia – Economic incentive to stay in Australia – No evidence of current course of enrolment – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

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 11 April 2017 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 22 November 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 they were not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Standard) and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   Background

7. The applicant is a national of Egypt and is 33 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant first arrived in Australia in August 2007 on a Subclass 572 visa and since then had completed an English course, Certificate IV in Business Administration, Diploma and Advanced Diploma of Business, Diploma of Marketing, Certificate IV in Small Business Management, Certificate III in Financial Services, Advanced Diploma of Management. The delegate noted that the applicant had also commenced but failed to complete a Certificate III in Information Technology, Certificate IV & Diploma in Marketing and Communication, Diploma of Business Management, and Diploma and Advanced Diploma of Accounting.

9. At the time of application for the Subclass 500 Student visa, the applicant provided the Department with a copy of a letter of offer regarding a Bachelor of Business, which was to run from December 2016 to December 2018. The delegate noted that the applicant did not subsequently enrol in that course but had in March 2017 provided a Confirmation of Enrolment (CoE) for a Bachelor of Business, which was to run from July 2017 to July 2019.

10. On 19 June 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 18 July 2018. That invitation among other matters, requested the applicant provide evidence of his current studies, evidence of his successful completion of courses, an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

11. Prior to the hearing the Tribunal received documents from the applicant including: evidence of his past academic studies in Australia, medical evidence regarding the applicant and his wife and a written submission from his representative.

    The hearing

12. At the start of the hearing the Tribunal provided the applicant with a copy of the PRISMS records outlining his study history in Australia and gave him the opportunity to consider this information.  The Tribunal also told the applicant it would, if appropriate put particulars of information to him from these student records during the hearing.

13. In response to a question as to whether he was currently studying or had a current offer of enrolment in a course, the applicant gave evidence he ceased his studies a few months after the Department refused his application for the Subclass 500 visa.  He said this was in or around July 2017 and that the course he was at that time studying was a Bachelor of Business.  He said he stopped his studies due to the ongoing impact of a motor vehicle accident which occurred, to the best of his recollection, around February 2016.  He said the accident has caused him ongoing psychological difficulties and also pain affecting his lower back, right arm and right shoulder. He said he takes pain relief medication and periodically has appointments with his General Practitioner and at some time during 2017 he had a consultation with a psychologist.

14. In response to a question regarding his employment history whilst he has been in Australia the applicant said he has worked as a cashier in small retail convenience stores since 2009 or 2010.  For most of that time in a variety of EZY Mart stores, but for the last two years with a different franchise, in stores at Darling Harbour and Double Bay.  He said he usually works between 10 to 15 hours per week and is paid $17 per hour.

15. The applicant said he has some relatives in Australia, namely a cousin and his brother in law.   He said his wife is in Egypt, along with numerous other relatives.  He said he and his wife have had difficult having children and that his wish to be with his wife provides him a clear incentive to return to his home country.  He said his plan is to finish the Bachelor of Business and then return to Egypt and apply the knowledge and skills he has gained in Australia in a family import / export business.  He said he may also seek work in other Arabic countries.

    Particulars of information put to the applicant pursuant to s.359AA of the Act

16. The Tribunal put particulars of information to the applicant from a recent check of the Provider Registration and International Student Management System (PRISMS) to the applicant pursuant to s.359AA of the Act after first explaining to him this information would, subject to his comment and response, provide the reason, or part of the reason, for affirming the decision under review. The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request.

17. The particulars of the information were that the PRISMS student records indicates:

    ·    he enrolled in a Diploma of Marketing, which was to run from April 2016 to April 2018, but his enrolment was  cancelled when you advised the education provider he had changed to a different course;

    ·    his enrolment in a Certificate IV in Marketing and Communication, which was to run from July 2016 to July 2017, was  deferred and subsequently cancelled;

    ·    he enrolled in an Certificate IV in Marketing and Communication, which was to run from October 2016 to October 2017, but his enrolment was  cancelled when he advised the education provider he had changed to a different course;

    ·    his enrolment in a Diploma of Marketing and Communication, which was to run from October 2017 to October 2019 , was  cancelled due to non commencement of studies;

    ·    his enrolment in a Bachelor of Business, which was to run from December 2016 to December 2018, was deferred in January 2017 and subsequently cancelled;

    ·    his enrolment in a Bachelor of Business, which was to run from March 2017 to March 2019, was deferred in March 2017 and subsequently cancelled;

    ·    his enrolment in a Bachelor of Business, which was to run from July 2017 to July 2019, was cancelled  in August 2017, due to non commencement of studies

    ·    there is no indication on the PRISMS records that he is currently enrolled in any course of study, or that he has completed any courses since March 2016.

18. The Tribunal explained to the applicant that this information was relevant because it appears to indicate he is not currently enrolled in a course of study.  The Tribunal told the applicant that if the Tribunal relies on that information it may find he does not meet a threshold requirement for the grant of a student visa and that if the Tribunal finds he is not studying and does not have an offer of enrolment, it will affirm the decision to refuse the student visa. 

19. The Tribunal also told the applicant the information is relevant because it indicates he has failed to undertake study in, or complete study in a number of courses in which he was enrolled.

20. The Tribunal told the applicant that if it was to rely on that information it may find he is not a genuine applicant for entry and stay as a student and that he is using student visas to maintain his residency in Australia for other reasons and that if the Tribunal finds he is not a genuine student or that he does not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the Student visa.

21. The Tribunal provided the applicant with a brief adjournment to consider his response and after the hearing resumed he said he would like to clarify some things about the courses which were postponed or cancelled.  He said that after his accident he was not able to maintain study in courses which required him to sit or stand for prolonged periods.  He said he also was unable to sit for prolonged periods in a chair.  He said this was why he decided to undertake easy courses, which didn’t need him to sit for long periods of time.  He said not all of the courses were relevant to him, as his migration agent was making the course selection choices for him. He said that is all that he wished to clarify but that he also wanted the Tribunal to understand he wants to get qualifications that will enable him to get a good job in Israel, or in his aunt’s small export / import business in Egypt.

22. At that the end of the hearing the applicant’s representative requested time to provide further evidence and documents to the Tribunal on behalf of the applicant and the Tribunal consented to this request, indicating to the applicant that the Tribunal would consider any further evidence or submission that were provided by 1 August 2018.  The Tribunal requested the applicant provide, in conjunction with any other evidence, two years of account statements from bank accounts he is operating in Australia and copies of assessment notices from the Australian taxation office for the four most recent income years.  The Tribunal told the applicant it was asking him to provide this information to assist with the Tribunal forming a view as to whether his employment earnings in Australia were providing him with an economic incentive to maintain his residency.  No further submissions or documentary evidence was received by the Tribunal within that time frame, or by the time of this decision.

    CONSIDERATION OF CLAIMS AND EVIDENCE

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 at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.

24. The issue before the delegate was whether the applicant met the criterion in cl.500.212. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

25. 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.

26. ‘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.

27. The Tribunal has considered the evidence provided by the applicant during the hearing and that contained in the Department and Tribunal files. 

28. The Tribunal accepts the applicant has enrolled in a number of courses since his arrival in Australia, a number of which he has failed to commence or complete.  The Tribunal accepts he has completed some of these courses.   The Tribunal accepts the applicant was physically and medically impacted by injuries he has suffered as a result of a motor vehicle accident in early 2016. However the Tribunal is not persuaded the applicant has demonstrated the ongoing impacts of these injuries contributed significantly to his decision to cease study in or around July 2017 and his decision not to recommence study or enrol in further courses since that time.  The Tribunal accepts the applicant has a strong familial connection to his home country, which provides him with an incentive to return there at some stage. The Tribunal has noted the applicant has managed to maintain paid employment in Australia, including during periods he claims he was unable to study because of the injuries suffered in the motor vehicle accident.  The Tribunal has noted with some concern that the applicant did not provide financial records that were requested by the Tribunal, which raises a concern he may have an economic incentive to maintain his residency in Australia.

29. The Tribunal finds the applicant ceased study in a Bachelor of Business in or around March 2017 and that his enrolment in that course was subsequently cancelled by the employment provider due to the non commencement of studies.  There is no evidence before the Tribunal that the applicant has a current offer of enrolment in any course.  The Tribunal has considered these factors and all the other evidence provided by the applicant during the hearing and in the Department and Tribunal files.  The tribunal also provided the applicant with further time, as requested, following the hearing to provide any further submission and documentary evidence he wished to be considered before a decision is made in the matter.

30. The Tribunal is not satisfied that at the time of this decision, the applicant is enrolled in a course of study and accordingly cl.500.211 is not met.

31. 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

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

    David Barker
    Member