Karim (Migration)
[2018] AATA 3306
•20 August 2018
Karim (Migration) [2018] AATA 3306 (20 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Abdul Karim
CASE NUMBER: 1622513
HOME AFFAIRS REFERENCE(S): BCC2016/3140036
MEMBER:Stephen Conwell
DATE:20 August 2018
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Statement made on 20 August 2018 at 8:45am
CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 500 (Student) – Genuine temporary entrant – Did not commence Higher Education Course – Enrolled in current course on day of commencement – Breach of work rights – Working approximately 40 hours per week – Decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212Schedule 8 Conditions 8202, 8516STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 December 2016 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 21 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.
The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that he genuinely intended to stay in Australia temporarily.
The applicant appeared before the Tribunal on 3 May 2018 to give evidence and present arguments. The applicant was assisted in relation to the review by their registered migration agent.
At Hearing the applicant confirmed that he is applying for a student visa and does not claim to meet the criteria for a Student Guardian visa he also confirmed that he provided the Tribunal with a copy of the delegate’s decision with his application for merits review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Where used in this decision:
a. COE refers to Confirmation of Enrolment;
b. VET refers to Vocational Education and Training;
d. The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);
e. ‘Direction 69’ or ‘the Direction’ refer 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 has complied with cl.500.212(b) in so far as the applicant intends to comply with any conditions subject to which the visa is granted.
Genuine applicant for entry and stay as a student (cl.500.212)
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 to comply with visa conditions?
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.
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).
At Hearing the applicant provided a Statement of Purpose to the Tribunal and also completed a Genuine Temporary Entrant (GTE) questionnaire. The Statement referred to the illness of his grandfather (with cancer) and mother and provided the Department with supporting documentation relating to treatment and hospital admission for both; according to the Death Certificate provided, the applicant’s grandfather died on 11 April 2016.
Follow the Hearing the applicant provided a further statement and tax returns for 2015, 2016 and 2017, as requested by the Tribunal. The earlier tax returns are unremarkable, however the Tribunal notes that for the 2016-2017 tax year the applicant worked full-time as a security officer, earning a taxable income of $43,325.
In a written explanation submitted to the Tribunal on 10 May 2018, the applicant states that he worked full-time in this role for an average of 40 hours per week. The applicant stated that he commenced full-time work because he was, “misguided by the education consultant that I was unable to change my current (at the time) COE which was the Diploma of management (Hospitality) to Diploma of Management (Business) (sic) continue my study due to the refusal of Student Visa extension and i(sic) was not holding a valid student Visa but I did have full working rights. As of now, I am completely back to my studies ”
Conditions 8202 and 8516
The TU-573 visa was granted to study in the Higher Education (HE) sector. Conditions 8202 and 8516 were attached to this visa.
Condition 8202 provides that a visa holder must be enrolled in a registered course and the holder must maintain enrolment in a registered course that, once completed, will provide a qualification from the Australian Qualifications Framework that is at the same level as, or at a higher level than, the registered course in relations to which the visa was granted. This means the applicant must enrol in a registered course in the HE sector.
Condition 8516 provides that a visa holder must continue to be a person who would satisfy the primary or secondary criteria, as the case requires, for the grant of the visa.
The applicant was granted a 573 visa to enrol in a Bachelor of Business in the Higher Education sector. However the delegate’s decision referred to the applicant’s Provider Registration and International Student Management System (PRISMS) record to note that the applicant did not commence the course, resulting in the cancellation of his enrolment on 26 November 2014. The applicant then did not undertake further study for a period of 18 months yet remained onshore.
In his Statement to the Department, the applicant stated that he quit his Business studies because he found it “too technical” and in February 2015 he enrolled at a different college, Cambridge International College (CIC), in accounting leading to a Bachelor of Business (Accounting).
During his first semester he learnt of his own father’s diagnosis with cancer and of his mother’s ill-health. These family difficulties left him stressed, depressed and home sick. However the applicant did not provide any evidence of his stress or depression, nor any evidence of his seeking or receiving any psychological, psychiatric medical or professional counselling relating to these concerns.
At Hearing the applicant did not dispute the delegate’s finding that he remained onshore yet did not enrol in any subjects or carry out any study for the best part of 18 months although he claims that he embark upon accounting studies at CIC, leading to a Bachelor of Business (Accounting) at CIC in early 2015, however he submitted no evidence of this. The applicant did not provide a letter of enrolment, academic transcript or evidence of payment of tuition fees for this course. In the absence of such evidence the Tribunal finds that the applicant was not enrolled in this course in this period.
The applicant’s Statement of Purpose submitted to the Tribunal claims that the ill-health visited upon his grandfather and his mother in 2015 diverted his family’s finances from his studies to their medical expenses. Their failing health also concerned and distracted the applicant, causing his studies to suffer.
The Tribunal accepts the evidence pertaining to the ill-health of the applicant’s grandfather and mother however it gives greater weight to the fact that the applicant remained onshore during this time and continued his part-time work despite his not being enrolled in a course of study for a significant period of time. According to his tax returns and written Statement, the applicant worked at Alasya Restaurant and Baker’s from 2014 – 2016 inclusive, working on an average of 20 hours per week.
The Tribunal finds the applicant was in breach of Conditions 8202 and 8516 attached to his Student visa for more than 12 months between 26 November 2014 and 23 May 2016.
Condition 8105
Following the delegate’s decision on 16 December 2016 until the present the applicant has been the holder of several Bridging visas. Condition 8105 was attached to each of these Bridging visas. Condition 8105 is a work limitation clause. Condition 8105(1A) provides “…the holder must not engage in any work in Australia before the holder’s course of study commences…”
The Tribunal is aware the applicant is not required to enrol in a registered course during the period of his Bridging visa, however there is no prohibition to his continued study. The Tribunal is also aware there are significant work restrictions attached to Bridging visas.
As previously noted, in the applicant’s written Statement to the Tribunal, he confirms that following the delegate’s decision, he worked full-time as a security officer for an average of 40 hours per week. The applicant claims that he commenced full-time work because he was misguided by the education consultant regarding his visa status and conditions.
The Tribunal notes that the applicant did not enrol in his current course of a Diploma of Leadership and Management until 30 April 2018, the day of its commencement. According to the COE provided the Diploma of Leadership and Management - a VET level course – commenced on 30 April 2018 and will conclude on 28 August 2019. The Tribunal finds that the applicant’s enrolment in this course was motivated by migration and visa considerations and not by an intention to progress academically.
In view of this evidence, the Tribunal finds that the applicant has been in breach of condition 8105 in that he has engaged in work in Australia for a substantial period before his course of study commenced.
The Tribunal has regard to the applicant’s record of compliance with any condition of a visa previously held by the applicant. The applicant’s record of compliance is poor. He has not enrolled in registered courses. He has not maintained enrolment in registered courses at the required level. He has worked for extensive and continuing periods of time prior to his VET level course commencing. In the period following the delegate’s decision the applicant engaged in full-time work and enjoyed a significant income well above his annual living expenses and above the income he might expect to earn back in his home country.
The Tribunal gives no weight to the applicant’s statement that he engaged in full-time work due to misleading migration advice. The Tribunal is of the view that a person fit to work full-time for over 12 months since December 2016 is also capable of study at some time in that period.
The Tribunal has regard to the applicant’s statements to the Department and to the Tribunal. He essentially seeks to explain his poor study history through ill-health within his family, poor migration advice and plain bad luck. In none of his statements or evidence does the applicant address an intention to comply with any conditions subject to which the visa may be granted.
The Tribunal finds the applicant was in breach of condition 8105 attached to his Bridging visa for over 12 months until his enrolment on 30 April 2018.
On the basis of the above, the Tribunal not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Conclusion on cl.500.212
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Stephen Conwell
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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