Hilmin Rizvi (Migration)

[2024] AATA 147

Hilmin Rizvi (Migration) [2024] AATA 147 (24 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohamed Fawas Hilmin Rizvi

REPRESENTATIVE:  Mr Suraj Khatri (MARN:  074779)

CASE NUMBER:  2301323

HOME AFFAIRS REFERENCE(S):          BCC2022/3902283

MEMBER:Frank Russo

DATE OF ORAL DECISION:  24 January 2024

DATE OF WRITTEN STATEMENT:         24 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 24 January 2024 at 5:02pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant – not enrolled in registered course – most recent enrolments cancelled for non-commencements – previous non-commencements and cancellations in different subject areas – no evidence of mental health provided – continuing part-time work – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359(2), 359AA

Migration Regulations 1994 (Cth), r 1.03, Schedule 2, cls 500.111, 500.211(a), 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 Home Affairs on 23 January 2023 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 20 September 2022. 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 applicant is a 30-year-old national of Sri Lanka. The Student visa application under review was made in respect of the applicant’s enrolments in a Certificate III in Commercial Cookery, a Certificate IV in Commercial Cookery, a Diploma of Hospitality Management and an Advanced Diploma of Hospitality Management.

4. 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 (Cth) (the Regulations) because the applicant was not a genuine applicant for entry and stay as a student. For the reasons explained below, the issue now before the Tribunal is whether the applicant is enrolled in a course of study as required by cl 500.211(a).

5. The Tribunal gave its decision on the review at the conclusion of the hearing held on 24 January 2024. The following are the reasons for that decision.

6. The applicant appeared before the Tribunal by telephone on 24 January 2024 to give evidence and present arguments.

7. The applicant was assisted in relation to the review, although his representative did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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.

10. As noted above, while the issue before the delegate was whether the applicant is a genuine applicant for entry and stay as a student, given the information about the applicant’s enrolment status, the issue in the present case is whether the applicant is enrolled in a full-time registered course, and therefore a course of study, as required by cl 500.211(a).

11. The applicant provided the Tribunal with his application for review, a copy of the delegate’s reasons for decision and the Department’s notice of the decision. On 2 October 2023 the applicant provided a response to an invitation to provide information under s.359(2) of the Act, which consisted of a completed ‘Request for Student Visa Information’ form and confirmations of enrolment (CoEs) for the following courses of study at Riverdale Institute, each of which were created on 26 September 2023:

    a.Certificate III in Commercial Cookery from 25 September 2023 to 22 September 2024;

    b.Certificate IV in Kitchen Management from 23 September 2024 to 23 March 2025; and

    c.Diploma of Hospitality Management from 24 March 2025 to 21 September 2025.

12. The applicant provided a response to the hearing invitation. The Tribunal has had regard to these documents. The Tribunal has also considered the documents contained in the Department file.

    Enrolment (cl 500.211)

13. 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.

14. ‘Course of study’ is relevantly defined in cl 500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in reg 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 (Cth), to provide the course to overseas students.

    Applicant’s evidence regarding enrolment

15. At the hearing, the applicant gave evidence that he first arrived in Australia in January 2018, holding a Student visa. When asked whether he is currently enrolled in a course of study, the applicant at first stated yes. When asked what course of study he is enrolled in, he stated Cookery, then stated a Diploma of Cookery. When asked what date he commenced this course, the applicant stated that he needed to look at his CoE to get the exact date. After some time, he stated that he commenced the course on 18 July 2022. The applicant then conceded that he is not currently attending this course and stated this is because of his mental health. He stated that he is not attending any college, and that after COVID-19 he couldn’t do anything and didn’t know what he should do because he was in a confused state. When asked when he last attended a course of study, he stated it was in January 2023. He confirmed that he had not attended any courses of study for approximately one year.

16. The Tribunal used the procedure set out in s.359AA of the Act to put to the applicant information from his enrolment records from the Provider Registration and International Student Management System (PRISMS) database. The Tribunal explained to the applicant what the PRISMS database is and the relevance of the records to the review before the Tribunal. The Tribunal put the following particulars of information to the applicant:

    a.He had enrolments in the Certificate III in Light Vehicle Mechanical Technology commencing on 5 February 2018 and 9 April 2018, which were cancelled on 1 March 2018 and 18 October 2018, respectively. He also had enrolments in the Certificate IV in Automotive Mechanical Diagnosis, Certificate IV in Automotive Management, Diploma of Automotive Technology and Diploma of Automotive Management which were cancelled on these dates, as well as on 8 March 2018. He had a further enrolment in the Certificate III in Light Vehicle Mechanical Technology from 15 September 2019 to 14 November 2020, which is recorded as Finished;

    b.He had his first enrolment in the Certificate III in Commercial Cookery from 27 November 2018 to 17 December 2019, which was cancelled on 23 May 2019 because of deferment/suspension and compassionate or compelling circumstances;

    c.He had an enrolment in the Certificate IV in Commercial Cookery commencing on 17 January 2020 and the Diploma of Hospitality management commencing on 17 August 2020, both of which were cancelled on 30 January 2020 due to non-commencement of studies;

    d.He was enrolled in the Certificate IV in Automotive Mechanical Diagnosis from 15 November 2020 to 14 July 2021, however this enrolment was cancelled on 23 January 2021 due to non-commencement of studies;

    e.He was enrolled in the Diploma of Automotive Technology from 9 August 2021 to 7 August 2022, however this enrolment was cancelled on 11 September 2021 due to non-commencement of studies;

    f.He was enrolled in the Certificate III in Commercial Cookery from 21 February 2022 to 10 February 2023, however this enrolment was cancelled on 9 June 2022 due to deferment/suspension and compelling or compassionate circumstances. He had enrolments in the Certificate IV in Commercial Cookery and the Diploma of Hospitality Management which were also cancelled the same day due to changes to his CoEs/student details;

    g.He was again enrolled in the Certificate III in Commercial Cookery from 6 June 2022 to 4 June 2023, however this enrolment was cancelled on 10 March 2023 due to non-payment of fees. He also had enrolments in the Certificate IV in Commercial Cookery, Diploma of Hospitality Management and Advanced Diploma of Hospitality Management which were cancelled the same day due to non-commencement of studies; and

    h.He was enrolled in the Certificate III in Commercial Cookery from 25 September 2023 to 22 September 2024, however this enrolment was cancelled on 19 October 2023 due to non-commencement of studies. He also had enrolments in the Certificate IV in Kitchen Management and the Diploma of Hospitality Management which were cancelled the same day because of non-commencement of studies.

17. The Tribunal put to the applicant that this information may be relevant to the issue before the Tribunal, because it may indicate that he does not have a current enrolment in a registered course of study and that his last enrolments were cancelled on 19 October 2023 because he had not commenced his studies. The Tribunal explained to the applicant that, in order to be granted a Student visa, it is a requirement that he be enrolled in a registered course of study, and that arising from the evidence he had given, as well as the evidence which was put to him from his PRISMS enrolment records, he is not enrolled in a course of study and therefore the enrolment requirement has become the determinative issue in the application for review. The Tribunal explained to the applicant that the information may also be relevant to whether he is a genuine applicant for entry and stay as a student.

18. The Tribunal explained to the applicant the consequences of relying upon the information. The Tribunal confirmed that the applicant understood the relevance and consequences of the information being relied on. The Tribunal asked the applicant whether he had any comments in relation to his PRISMS enrolment records and advised that he may be granted time to comment on or respond to the information if needed.

19. The applicant confirmed that he understood the nature of the information and wished to comment on the PRISMS enrolment record at the hearing. The applicant responded that when he arrived in Australia, he was feeling homesick, was lost and could not concentrate on anything. He stated that he completed the Certificate III in Light Vehicle Mechanical Technology. He was pushing himself hard at the time and had many sleepless nights. He returned to Sri Lanka in 2018 and 2019, but could not return after that because of the border closures as a result of COVID-19. He stated that he was thinking too much about these things and became depressed and could not go to college. He stated that he went to see a psychologist and general practitioner during COVID-19, but his visa application was refused, and he could not concentrate.

20. The Tribunal put to the applicant that in his s.359(2) response, he declared that he worked as an Uber driver from September 2021 to October 2023 (when he provided the information to the Tribunal) and that he was earning $60,000 per year. The applicant confirmed that this was correct. The Tribunal put to the applicant that on this information, he appears to be able to work, which raises concerns as to why he cannot maintain enrolment in the courses of study he had enrolled in and why he cannot now take steps to become enrolled. The applicant responded that he found it very hard to sleep, which is why he could not attend college. He stated that he is only driving for Uber three to four days a week. When asked whether he has provided any information to the Department or Tribunal about his claimed psychological condition, he responded no, and was unable to provide a satisfactory response as to why such information had not been provided. When asked why his most recent enrolments in Commercial Cookery and Hospitality Management were cancelled on 19 October 2023, he stated it was because he could not go to college. he again restated that he could not sleep and was ‘overthinking’ about his visa situation and future. When asked why his enrolments before that were cancelled in March 2023, he stated that this was for the same reasons. He confirmed that he had no further comments in relation to the information from his PRISMS record.

21. The Tribunal also put to the applicant that the information about his enrolment history set out in his s.359(2) response is inconsistent with that contained in his PRISMS record, and put to him that he may have provided false information to the Tribunal. The Tribunal put to the applicant that he declared that he completed the Certificate IV in Automotive Mechanical Diagnosis from November 2020 to July 2021, that he completed the Diploma of Automotive Technology from September 2021 to August 2022 and completed the Certificate III in Commercial Cookery from February 2022 to February 2023, even though his PRISMS record indicates that each of these enrolments was cancelled. The Tribunal also put to the applicant that he provided his s.359(2) response on 2 October 2023, and declared that at the time he was studying the Certificate III in Commercial Cookery at Riverdale Institute from September 2023 to September 2024. The Tribunal put to the applicant that his enrolment in this course was subsequently cancelled on 19 October 2023 due to his failure to commence the course in September 2023. The applicant confirmed that he did not complete any of these courses. He stated that he ‘took’ the CoE for the Certificate III in Commercial Cookery which commenced on 25 September 2023, but he did not start the course. He stated that he did not try to mislead the Tribunal or give false information, and the details listed for these courses may have reflected his enrolments, rather than courses that he finished.

22. When asked whether he has taken any steps to become re-enrolled since October 2023, the applicant stated that he has just been talking to friends. He stated that his housemates have been helping him out and giving him advice, including pushing him to go out. He stated that if he goes to college, he can meet new friends. When asked whether he has seen or spoken to an education agent or directly approached a college to obtain an enrolment, he confirmed that he had not, and stated that he was waiting for a ‘reply’ from the Tribunal. The applicant also confirmed that he does not have any current offers of enrolment.

23. When questioned whether there were any other reasons why the Tribunal should not proceed to make a decision, the applicant indicated that he didn’t have any.

    Consideration of whether it was reasonable to grant an adjournment or extension of time

24. The Tribunal notes that the applicant did not request an adjournment of the hearing or an extension of time to obtain a current enrolment. The Tribunal has nevertheless turned its mind to whether an adjournment of the hearing would be reasonable under the circumstances. After considering the circumstances, the Tribunal considers it reasonable to proceed to make a decision in this matter and does not consider the circumstances warrant adjournment of the hearing.

25. The Tribunal notes that the applicant is represented. Although the applicant’s agent did not attend the hearing, his agent has filed documents on the applicant’s behalf, including making a declaration in relation to the s.359(2) response (the ‘Request for Student Visa Information’ form is declared by the applicant’s agent).

26. In addition, the applicant was informed on more than one occasion of the requirement that he be enrolled in a registered course of study in order to obtain a successful Student visa outcome. On 18 September 2023, the Tribunal invited the applicant, pursuant to s.359(2) of the Act, to provide information about his course(s) of study and his entry and stay in Australia as a student. The invitation specifically advised the applicant that it is a requirement for the Student visa that he be enrolled in a registered course of study. The applicant’s response, which was declared by his agent and provided to the Tribunal on 2 October 2023, recorded that the applicant was studying the Certificate III in Commercial Cookery from September 2023, despite the applicant not having commenced attending this course, with his enrolment ultimately cancelled on 19 October 2023 due to non-commencement of studies.

27. The applicant was again informed of the need to provide evidence of his enrolment in a course of study in the hearing invitation sent to him on 8 December 2023, and of the need to provide 7 days before the hearing, documents that show he is currently enrolled in a course of study or has an offer of enrolment. The applicant stated at the hearing that he read the information in the invitation, but gave an unclear and jumbled response, which included a statement that he was not sure about the information.

28. On his own evidence, the applicant ceased his studies in the Certificate III in Commercial Cookery in January 2023. His PRISMS record indicates that this enrolment was cancelled on 10 March 2023 because of non-payment of fees. The applicant remained unenrolled until 25 September 2023, when he re-enrolled in package courses leading to the Diploma of Hospitality Management. The Tribunal considers the timing of this re-enrolment, after a gap in his enrolments of over 6 months, was prompted by the Tribunal’s s.359(2) invitation sent on 18 September 2023. This concern is reinforced by the applicant’s failure to commence his studies in these courses and the subsequent cancellation of his CoEs because of the non-commencement.

29. While I have considered the applicant’s stated reasons for ceasing his studies, including his claims about having a psychological condition, his difficulties in sleeping and overthinking things, the impact of the COVID-19 pandemic and uncertainty with his visa situation, I find the applicant has not provided convincing or compelling reasons for not obtaining enrolment in a course of study. The applicant has not provided any medical evidence or certificates of a psychological or medical condition which would affect his ability to obtain an enrolment. The applicant claims he saw a psychologist and his general practitioner during the COVID-19 pandemic, but did not provide satisfactory reasons for why he has not provided such evidence to the Tribunal. The applicant also confirmed that he has worked as an Uber driver three to four days per week since September 2021, which raises concerns about his claims regarding why he could not maintain his enrolments. While I accept that a visa applicant who has had their visa application refused may experience symptoms of stress and depression as a result of the uncertainty of their visa status, and accept that other factors such as COVID-19 may have exacerbated such symptoms, I do not accept that the applicant has provided convincing or compelling medical reasons for why he has been unable to obtain a current enrolment or letter of offer.

30. Further, there is no evidence that the applicant has taken any steps to obtain an enrolment or letter of offer since his most recent enrolments were cancelled on 19 October 2023. When asked what steps he has taken to become enrolled, the applicant stated that he has just been talking to friends. I do not consider this to be evidence that he has taken sufficient steps to obtain an enrolment, particularly when the applicant is represented by a registered migration agent. The applicant confirmed that he has not seen an education agent or approached any colleges directly since his enrolments were cancelled. The Tribunal considers the applicant has had sufficient opportunity to obtain a current enrolment or letter of offer but has taken no active steps to obtain either.

1. Accordingly, the Tribunal has not granted an extension of time or adjourned the hearing.

   Findings with respect to enrolment

2. As set out above, the applicant conceded in his evidence that he is not currently enrolled in a course of study. He also confirmed that he has no letters of offer for a course of study. The applicant’s PRISMS record also indicates that he was last enrolled in a course of study on 19 October 2023, when three of his enrolments were cancelled because of non-commencement of studies. As noted, the applicant gave evidence that since then he has not taken any active steps to obtain an enrolment or letter of offer, such as by speaking to an education agent or a college.

3. On the evidence before the Tribunal, including the evidence from his PRISMS record, there is no evidence that the applicant is now enrolled in or has a current offer of enrolment in any applicable course of study.

4. Therefore, 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.

5. 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

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

   Frank Russo
   Member