GORANTLA (Migration)

[2018] AATA 5706

GORANTLA (Migration) [2018] AATA 5706 (22 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Madhu Sudhan GORANTLA

CASE NUMBER:  1708673

HOME AFFAIRS REFERENCE(S):           BCC2016/3251053

MEMBER:Wendy Banfield

DATE:22 October 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 22 October 2018 at 12:45pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – genuine temporary entrant – course cancellations – lack of academic progress – demonstrated completion of course –approved course of study – evidence of enrolment – Certificate  of Enrolment (COE) – evidence of career plans – incentive to return home – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359AA
Migration Regulations 1994, Schedule 2, cls 500.211, 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 7 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 30 September 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 it was determined the genuine temporary entrant criteria had not been met.

   Background

4. The applicant is a citizen of India and is currently 26 years old. He came to Australia on 25 October 2014 as the holder of a Subclass 573 Student Visa. The applicant initially enrolled and studied a Master of Technology (Enterprise Systems) before deferring the course on compassionate grounds and not resuming. The applicant then enrolled in Certificate and Diploma courses in Accounting.

5. The applicant declared to the Tribunal that he had since completed the Certificate IV in Accounting, was enrolled and studying a Diploma of Accounting and was also enrolled to take an Advanced Diploma of Accounting. The information available to the Tribunal was that the applicant was not presently enrolled or studying because his Certificate, Diploma and Advanced Diploma courses had been cancelled.

6. The Department had refused the visa because the applicant’s history of course cancellations and lack of academic progress was not consistent with the behaviour of a genuine student. In addition the applicant had not provided evidence of any career prospects based on his studies.

7. The applicant appeared before the Tribunal on 11 July 2018 to give evidence and present arguments.

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

   Evidence of the visa applicant

9. At the hearing the applicant submitted the following documents:

   ·     COE from Australian Harbour International College for an Advanced Diploma of Accounting commencing on 23 April 2018 and ending on 21 April 2019;

   ·     Statement of Attainment from Hamro Institute of Business Technology for the completion of one unit ‘Design and produce business documents’ from a Certificate IV in Accounting;

   ·     letter from Hambro Institute dated 16 November 2016 confirming the applicant’s enrolment in a Certificate IV in Accounting at that time;

10. The applicant had submitted evidence to the Department of prior enrolments and courses, a Commonwealth Bank statement, evidence of health insurance, statement addressing the genuine temporary entrant criteria and medical certificates for the treatment of kidney stones undertaken in India.

    The hearing

11. The applicant advised he first came to Australia in October 2014 to study a Masters in IT. He said he studied for two semesters but found it to be very hard. This was because in the applicant’s home country the level of education is quite different. The applicant had obtained a Bachelor in Computer Science prior to coming to Australia. According to the applicant, he suffered some medical problems and spent around two months in India. The applicant had been enrolled at Federation University for his Masters but on his return from India he decided to resume studying at a lower level. The applicant’s evidence was that he enrolled in a Certificate IV in IT with Hamro College and then changed to Accounting. He said his background was in this field and he wanted to go in that direction. The applicant was asked about the requirement for him to maintain enrolment at the higher education level. He agreed he had breached visa conditions by enrolling in a Certificate course and not seeking to change his visa, but said he had acted on the advice of a migration agent.

12. The applicant said he completed a Certificate IV in Accounting and went on to a Diploma in Accounting. He said he finished “last April” and has to get that Certificate. The applicant was asked if he in fact completed the Certificate IV and the applicant said yes, he had. The Tribunal put to him that the document he submitted only showed the completion of one unit from the course. After the document was shown to him, the applicant agreed that was the case and said the document is all he has. The representative commented that the applicant was going to get a Certificate in two weeks’ time but the Tribunal noted the applicant had studied the course in 2015. The applicant was asked why he did not have a Certificate of completion and he said he only had the Statement of Attainment (showing the completion of one unit).

13. The applicant was asked how many subjects he took for the Certificate IV course and he said eight. He claimed he had asked the college for the Certificate and the document he submitted was what he was given. The applicant stated he finished the course in 2017 having started it in 2016. The Tribunal advised the applicant his evidence did not demonstrate he had completed the course.

14. In accordance with section 359AA of the Migration Act, the Tribunal put to the applicant, particulars of information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. The applicant was advised the information is relevant to the review because, subject to his comment or response, it appeared the evidence available to the Tribunal was different to the information he was submitting. He was advised he could seek additional time to respond. The applicant asked for time to obtain a Certificate. The Tribunal asked the applicant to first listen to the information being put to him. The information the applicant was invited to comment on was that according to the Provider Registration and International Student Management System (PRISMS), he has not completed any courses and his Certificate IV, Diploma and Advanced Diploma in Accounting were all cancelled. The applicant was told that if the Tribunal relies on the information it may lead to the decision under review being affirmed. He was invited to comment on or respond to the information.

15. The applicant said he has yet to finish his Diploma but the Tribunal reminded him he is claiming to have completed the Certificate IV as well when the evidence from the education provider is that it was cancelled. The applicant again declared he had completed his Certificate IV. When asked if he completed the Diploma in Accounting, the applicant said he has two subjects left to complete. He then said he was currently studying the Advanced Diploma in Accounting. The Tribunal asked how he was able to take the Advanced Diploma if he had not finished the Diploma. He said he was told he could finish the Diploma and go on to Advanced Diploma.

16. The Tribunal referred the applicant again to the fact that his Diploma and Advanced Diploma courses appear to have been cancelled. The applicant was unable to produce a COE for a course currently being studied. The Tribunal asked the representative if he had those documents and he said he did not because he had only recently taken over the case. The Tribunal advised the applicant he did not meet the requirements for the grant of a student visa as he did not have evidence of enrolment. He was advised he needed to be enrolled in an approved course of study whereas the evidence available to the Tribunal is that all his enrolments have been cancelled. The applicant asked for two weeks to get an enrolment letter and his ‘Certificate of Diploma’. He said as soon as he gets his ‘Certificate of Diploma’ that he has two units left to complete, he will be able to enrol in the Advanced Diploma. The Tribunal explained again that the applicant needed to provide a current COE for the Diploma course if that is what he claims to be studying. The applicant then said he has the COE but does not have a copy. The Tribunal advised the applicant he could have a week’s time after the hearing to provide his current COE but asked him again to explain why the records show his enrolment is cancelled. He reiterated he is studying a Diploma that began in April 2017 and was to finish in April 2018. The Tribunal asked why he had not completed in April and was claiming to be still studying in July. The applicant became vague but said he had to go back to some subjects and has completed 8 out of 11 subjects.

17. The Tribunal asked the applicant what subjects he still has to complete in his Diploma course. He replied “financial accounting, balance sheets”, then trailed off and said…”I still have to do projects”. The Tribunal told the applicant his evidence sounded very vague. He was then advised that when the Department refused his visa, he had sought a review of the decision and it was his responsibility to demonstrate that he is enrolled and also explain why the records available to the Tribunal shows his courses have been cancelled. The applicant replied that he can go to the college and ask for his records. The Tribunal then asked the applicant whether the college he claims to be studying at will confirm he is enrolled with them and he said “yes”.

18. The applicant was advised he could have one week to provide a COE for his current enrolment. The applicant was asked whether he had anything else to say in support of his application and he said he did not.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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. The issue in the present case is whether the applicant is a genuine applicant for entry and stay as a student.

21. 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?

22. 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.

23. 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.

24. The Tribunal considered the applicant’s circumstances in his home country. According to his application for a Student Visa, the applicant’s parents live in India and he also has two brothers. Prior to coming to Australia he completed a Bachelor degree in Computer Science. He declared an intention to work in the same field as his studies in future, which at the time of application was accounting. No specific details of career plans in India were submitted. Although the applicant has family members in his home country, the Tribunal is not satisfied there is evidence of a strong incentive for him to return to India after studying in Australia.

25. The applicant came to Australia on 25 October 2014 and initially enrolled in a Masters of IT (Enterprise Systems). According to the evidence given at the hearing, the applicant began his Master’s course but found it to be too difficult. According to a ‘Results Statement’ issued by Federation University dated 18 March 2015 for the applicant’s Masters course and submitted in evidence to the Department, he completed four units in 2014 and received an ‘F’ grade for each of them. The applicant provided evidence to the Department that he was diagnosed with a medical condition in India in July 2015 for which he was given medication. He then underwent surgery requiring hospitalisation for two weeks from 3 to 20 February 2016, also in India. The Tribunal accepts the applicant suffered a medical condition for which he sought treatment and that he was granted leave from his studies on compassionate grounds at some point. However, the applicant’s temporary ill health does not account for his failure to maintain enrolment or complete courses.

26. The applicant’s enrolment in a Master’s degree was later cancelled and he gave evidence that he decided to start at a lower level so he enrolled in a Certificate IV in Accounting. As stated in the Department’s decision record provided in evidence, this was a breach of his visa conditions 8516 (continue to be a person who would satisfy the primary condition for the grant of the visa) and 8202 (remain enrolled and achieve satisfactory course attendance and progress). The applicant conceded during the hearing that he did not seek to change his student visa in order to undertake studies at a vocational level instead of higher education, and was in breach of his visa.

27. No evidence was provided of any employment undertaken by the applicant in India or Australia and he listed his employment status in the Application for a Student Visa as ‘student’. The applicant declared his financial support came from his parents. On the evidence available, it appears the applicant does not have any work history since completing his Bachelor degree in India. To date he has not completed any further courses in either IT or Accounting and the Tribunal is not satisfied he has any basis on which to pursue Accounting as a career in the near future. Given the applicant’s study history to date, the Tribunal does not accept he will maintain enrolment or successfully complete any courses in Australia.

28. After the hearing, in response to an invitation to comment on information, the applicant submitted two new COEs for a Diploma of Accounting and Advanced Diploma of Accounting. The Tribunal has considered the value of the courses the applicant has recently enrolled in to his future. While they may be of some overall benefit; the courses are not consistent with the applicant’s previous studies in IT and are at a lower level. The Tribunal considers the applicant has only sought re-enrolment in response to the Tribunal’s invitation to comment on his lack of enrolment since it is a mandatory requirement for the grant of a visa. The Tribunal is not satisfied the applicant has re-enrolled for genuine reasons and is unlikely to maintain enrolment.

29. During the hearing the applicant had claimed he was currently enrolled in a course of study, and had completed a Certificate IV in Accounting. After the hearing, on 12 July 2018 the Tribunal wrote to Harbour College where the applicant’s COEs for a Diploma and Advanced Diploma of Accounting were issued and asked them if the applicant was currently enrolled, as he claimed. Harbour College responded the same day and advised the applicant had been issued two COEs on 5 May 2017 but he was reported for poor course progress and his last day of study was 15 November 2017. The college stated the applicant was not currently enrolled with them.

30. On 17 July 2018 the Tribunal wrote to Hamro College where the applicant claimed he had completed a Certificate IV in Accounting. Hamro College responded the same day and advised the applicant did not complete a Certificate IV in Accounting and his COE was cancelled on 30 January 2017 due to unsatisfactory course progress. The college advised he completed only one unit out of 13.

    359A letter

31. On 18 July 2018 the Tribunal wrote to the applicant inviting him to comment on or respond to information:

32. The particulars of the information put to the applicant were:

    ·     On 11 July 2018 you attended a hearing and provided evidence in support of your application for review. At the time of the hearing you submitted a copy of a Certificate of Enrolment (COE) to study an Advanced Diploma of Accounting from 23 April 2018 to 21 April 2019. When asked what you were currently studying, at first you said the Advanced Diploma of Accounting and later, a Diploma of Accounting. You said you had been given until Friday to pass the assessment for the Diploma course.

    The Tribunal put to you that according to the Provider Registration and International Student Management System (PRISMS), all of your enrolments have been cancelled and you have not completed any courses. You claimed that if the Tribunal contacted Harbour College, they would confirm you are enrolled and studying. On 12 July 2018 the Tribunal received advice from Harbour College that on 5 May 2017 you were issued with COEs for a Diploma and Advanced Diploma of Accounting. However, your last day of study was 15 November 2017 and you were reported for ‘Poor Course Progress’ on 22 March 2018. Harbour College advised you were not enrolled with them anymore.

    ·     At the hearing on 11 July 2018 you also submitted a Statement of Attainment for one unit of competency towards a Certificate IV in Accounting and a letter from Hamro Institute stating you were enrolled in a Certificate IV in Accounting with a start date of 23 May 2016 and an end date of 22 May 2017. You claimed that you completed the Certificate IV ‘last April’ and that you need to obtain the Certificate. When it was put to you that PRISMS showed the course had been cancelled and your Statement only showed one unit completed, you continued to claim you had completed the Certificate IV in Accounting.

    ·     On 17 July 2018 the Tribunal received advice from Hamro Institute stating you did not complete a Certificate IV in Accounting. Your COE was cancelled on 30 January 2017 due to unsatisfactory course progress. According to the college, you completed only one unit out of 13 required for the course.

1. The letter stated that in the invitation to attend a hearing the applicant was asked to provide a copy of a current COE or other documents that show he is currently enrolled in a course of study as required for the grant of a student visa. The applicant was advised he had provided a copy of a COE for an Advanced Diploma of Accounting that is not current and had not provided information to demonstrate he is enrolled.

2. The applicant was also advised the information is relevant to the review because cl.500.211 of the Migration Regulations states that at the time of decision, to be eligible for the grant of a student visa an applicant must be enrolled in a full-time registered course of study. It is also relevant because it indicated the applicant had provided false and misleading information to the Tribunal when he had given an affirmation to tell the truth during the hearing. The applicant was told that if the Tribunal relies on the information in making a decision, it may lead to the decision under review being affirmed.

3. On 1 August 2018 the applicant’s representative responded by email to the invitation to comment. The email stated that as per the Tribunal’s request on 18 July 2018, two COEs were attached. The attached COEs were issued by Future College Pty Ltd for a Diploma of Accounting starting on 6 August 2018 and ending on 5 August 2019 and an Advanced Diploma of Accounting starting on 23 September 2019 and ending on 22 February 2021. Both COEs displayed a creation date of 1 August 2018. The applicant did not respond to the specific information that was put to him for comment or response in the Tribunal’s letter of 18 July 2018.

4. The Tribunal has considered the evidence in the applicant’s case individually and cumulatively and is not satisfied the applicant is a genuine student who intends to stay in Australia on a temporary basis. The Tribunal accepts the applicant is currently enrolled and meets the requirements of cl.500.211 of the Migration Regulations. However, the applicant has a history of breaching visa conditions by not maintaining enrolment at the level for which the visa was granted, not continuing to be enrolled and not making academic progress. The applicant’s evidence during the hearing regarding his enrolment status and the completion of a Certificate course was vague and evasive and not consistent with the evidence available to the Tribunal. When the applicant’s claims of having completed a Certificate IV in Accounting and being presently enrolled in a Diploma and Advanced Accounting courses were verified with the education providers concerned, the information from them indicated the applicant’s evidence was false.

5. The applicant did not respond to the Tribunal’s invitation to comment specifically on the adverse information from Harbour College and Hamro Institute. The Tribunal accepts the information provided by the two colleges regarding the applicant’s enrolment and study history with them and considers the applicant deliberately attempted to mislead during the hearing by asserting facts that he knew to be untrue. This is not the behaviour of a genuine student and as a result, the Tribunal did not find the applicant to be credible. The Tribunal places weight on the applicant’s circumstances as indicating his application for a Student Visa is intended primarily for maintaining residency in Australia.

6. 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).

7. 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.

8. 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

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

   Wendy Banfield
   Member