Kazmi (Migration)

[2018] AATA 3950

Kazmi (Migration) [2018] AATA 3950 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Syed Aun Muhammad Kazmi

CASE NUMBER:  1712501

HOME AFFAIRS REFERENCE(S):           BCC2017/1008640

MEMBER:Stephen Conwell

DATE:26 September 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 26 September 2018 at 7:09pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) – Subclass 500 (Student) – genuine application for entry and stay as a student – changes in courses – no explanation for gap in study – use of student visa program to maintain ongoing residential status – decision under review affirmed 

PRACTICE AND PROCUDURE – information not provided to the Tribunal within the required timeframes – lost right to a tribunal hearing – decision made on review

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2 cl 500.212

CASES

Hasran v MIAC [2010] FCAFC 40

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 25 May 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 14 March 2017. 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 the delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily (GTE criterion).

4. On 7 August 2018 the applicant was invited under s.359(2) of the Act to provide information about his proposed course of study and his entry to stay in Australia as a student. The applicant was informed that if the Tribunal did not receive the information by 20 August 2018, that the Tribunal may make a decision on the review without taking any further action to obtain the information, and the applicant would lose any entitlement they might otherwise have had to appear before the Tribunal to give evidence and present arguments.

5. Where used in this decision:

   a.   COE refers to Confirmation of Enrolment;

   b.   VET refers to Vocational Education and Training;

   c.   The Department refers to the Department of Home Affairs (and its predecessor, the Department of Immigration and Border Protection);

   d.   Direction 69 or the Direction refer to Direction No.69, Assessing the genuine temporary entrant criterion for Student visa application;

   e.   GTE refers to the Genuine Temporary Entrant criterion for Student visa applications.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 intends genuinely to stay in Australia temporarily.

8. 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?

9. 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.

10. 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.

11. The Tribunal wrote to the applicant on 7 August 2018 requesting information under s.359(2) of the Act in the following terms:

    ·       As you applied for this visa on the basis of undertaking a course of study in Australia, it is a requirement for the visa that you are enrolled in a registered course of study and that you are a genuine applicant for entry and stay as a student.

    ·       Accordingly, you are now invited to give, in writing, information about your proposed course(s) of study and your entry and stay in Australia as a student. Specific details about the information requested is set out in the Request for Student Visa Information questionnaire attached with this letter. The information requested should be given by completing the attached questionnaire and returning it to us.

12. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 20 August 2018 the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The applicant did not complete the information requested in the s.359(2) invitation, however his representative emailed the Tribunal on 28 August 2018 (after the prescribed period had expired) to advise that the applicant was in Pakistan undergoing medical treatment and requested additional time in which to respond to the Tribunal’s the invitation to provide the information requested). The representative attached a request for an extension signed by the applicant along with a medical certificate dated 21 August 2018 from the Aga Khan University Hospital, Karachi.

14. On 28 August 2018 the Tribunal replied to the applicant’s representative stating that whilst the time to respond or request an extension to the s.359(2) invitation had lapsed, the applicant was free to submit any further submissions as soon as possible, prior to the Tribunal making a decision in this matter.

15. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or his to appear: Hasran v MIAC [2010] FCAFC 40.

16. The Tribunal has decided to proceed to decision without taking further steps to obtain the information. Accordingly the Tribunal moves to resolve the review application “on the papers”.

17. The Tribunal has reviewed the delegate’s decision of 25 May 2017 which was provided by the applicant with his application for merits review. This decision is not binding on the Tribunal and the Tribunal brings an independent view to the review application.

18. The delegate’s decision in summary notes:

    ·       The applicant was granted his initial Student visa (TU 572) to study Certificate IV and Diploma of Business; he arrived in Australia on 27 December 2010.

    ·       Since his initial Visa the applicant has been granted a further three Student visas (two further subclass 572 visas and a subclass 573, Higher Education visa).

    ·       At the time of decision, the applicant was enrolled in automotive studies leading to a Diploma of Automotive Technology due for completion on 14 June 2019.  This study path would extend the applicant’s stay in Australia to more than eight years.

    ·       At the time of decision the applicant had completed the following courses –

    oCertificate IV in Business

    oDiploma of Business        and

    oAdvanced Diploma of Management,

    ·       in a submission to the Department with his current 2017 visa application (DIBP fols. 34-36), the applicant states his proposed further studies will provide him with the necessary qualifications to embark upon an automotive career in his home country.

    ·       The applicant’s previous visa application of 15 March 2016 included a Statement of Purpose which refers to the applicant’s interest in accounting in support of his study towards a Bachelor of Business (Accounting).

    ·       The contradictory nature of the two Statements of Purpose and further observes that when the applicant was granted his previous visa on 14 June 2016, the COE for his business studies was cancelled on 27 June 2016, a few weeks after the visa was granted as the applicant had changed course to Bachelor of Business (Management).

    ·       The applicant commenced the Bachelor of Business (Management) course on 6 June 2016, however the COE was again cancelled due to non-payment of fees.

    ·       As a consequence the applicant did not pursue any studies from 25 December 2016 to 20 March 2017.

    ·       The delegate’s strong concerns regarding the genuineness of the applicant’s claims and intentions; in particular the concern that the applicant’s current visa application was to extend his stay in Australia and not for academic progression in his studies.

    ·       That at the time of decision the applicant had already been onshore for over 6 years and in that time had not progressed beyond VET level courses and he appeared to have enrolled in a variety of study areas with no clear career goal.

    ·       That on balance the delegate was not satisfied that further education in Australia would be of significant benefit towards achieving the applicant’s stated career goals given his study history and the qualifications he had already obtained in Australia.

19. The delegate was not satisfied that the applicant intends genuinely to stay in Australia temporarily. 

20. The applicant has offered no explanation regarding the contradictory statements in his two Statements of Purpose to the Department.  He has offered no explanation regarding his study gap from 25 December 2016 to 20 March 2017.

21. The Tribunal has considered all the above information and has regard to Direction 69.

22. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent him from returning to Pakistan and the Tribunal makes no findings against the applicant based on:

    ·       any of the following factors in the home country – economic or political circumstances, potential military service or civil unrest;

    ·       circumstances in the home country relative to Australia or any other country;  or

    ·       the applicant’s circumstances in the home country relative to others in that country.

23. On the evidence before it, the Tribunal finds that the applicant is not a genuine student. Rather, he appears to be using the Student visa program as a means of maintaining ongoing residence in Australia and he does not genuinely intend to stay in Australia temporarily.

24. Overall, given lack of evidence of academic progress, his study history, his immigration history and the lack of value of the courses to his future, the Tribunal find that the applicant is using the Student visa program to circumvent the intention of migration programs and the Tribunal is not satisfied the applicant is a genuine applicant for entry and stay as a student and that he genuinely intends to stay in Australia temporarily.

25. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, 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).

    Conclusion on cl.500.212

26. 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.

27. 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

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

    Stephen Conwell
    Member