Kok (Migration)

[2017] AATA 940

Kok (Migration) [2017] AATA 940 (29 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kean Lee Kok

CASE NUMBER:  1609565

DIBP REFERENCE(S):  BCC2016/967882

MEMBER:John Cipolla

DATE:29 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 29 May 2017 at 6:06pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine temporary entrant – Limited course completion record – Lengthy gap within studies – Courses unrelated to earlier studies – Unsatisfactory academic progress in courses – Prolonging residence in Australia

LEGISLATION

Migration Act 1958, ss 65, 499

Migration Regulation 1994, Schedule 1, Item 1222, Schedule 2, cl 572.223

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 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 to the Department of Immigration for the visa on 8 March 2016. The delegate decided to refuse to grant the visa on 7 June 2016. At the time the visa application was lodged, the Student (Temporary) (Class TU) visa contained a number of subclasses: Item 1222 of Schedule 1 to the Migration Regulations 1994 (the Regulations). Generally speaking, the subclass that can be granted depends upon: the type of course in which the applicant is enrolled or has an offer of enrolment as his or her principal course (Subclass 570 - 575); for certain applications made on or after 24 March 2012, whether the applicant is an ‘eligible higher degree student’ (Subclass 573 – 574) or ‘eligible university exchange student’ or ‘eligible non-award student’ (Subclass 575); whether the applicant has the support of the relevant Minister (Subclass 576); or whether the applicant has applied on the basis of being a Student Guardian (Subclass 580).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate could not be satisfied that the applicant genuinely intended to stay in Australia temporarily as a student.

4. The applicant appeared before the Tribunal on 3 May 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

7. Recourse to the delegate’s decision record indicates as follows. The applicant was granted a subclass 572 student visa on 27 November 2013 and arrived in Australia as the holder of that visa on 15 December 2013. In determining whether the applicant was a genuine student the delegate had regard to the Provider Registration and International Student Management System (PRISMS) which documented the applicant’s study history in Australia.  The history indicated that since the applicant arrived in Australia he did not engage in any study between 1 January 2014 and 31 December 2014 a period of 12 months. The applicant then enrolled in an Advanced Diploma of Tourism in January 2014 an enrolment which was later cancelled. He then enrolled in a Certificate III in Tourism once again the certificate of enrolment was cancelled. He then enrolled in the Diploma of Travel and Tourism in March 2015 and once again the certificate of enrolment was cancelled. The applicant then commenced a Certificate IV in Business on 9 November 2015 a course that he completed on 17 April 2016. The applicant was currently studying a Diploma of Business that he commenced in May 2016 and which was due for completion on 23 April 2017 and had also enrolled in an Advanced Diploma of Business that he was due to commence in May 2017 and is due for completion in October 2017.  The applicant submitted evidence that he was currently making satisfactory academic progress in his current course.

8. The Tribunal has had regard to an updated PRISMS report which indicates that the applicant certificate of enrolment in both the Diploma of Business and the Advanced Diploma of Business have been cancelled on the basis that the applicant failed to commence studies. This evidence was discussed with the applicant at the review hearing.

9. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(1)(a) relevantly states:

   (1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)      the Minister is satisfied that 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)     …

10. In considering whether the applicant satisfies this criterion, the Tribunal must have regard to Direction No.53, Assessing the genuine temporary entrant criterion for Student 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.

11. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended to guide decision makers to weigh up the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

12. The applicant advised the Tribunal at hearing that he was born in 1989 and completed high school around 2008. The applicant stated that upon completion of his high school studies he undertook a four-year diploma course in information technology in Ipoh Malaysia. The applicant stated that he did some work in this field for about 6 months prior to making an application for the student visa to Australia.

13. The Tribunal noted that the Departmental delegate had regard to the PRISMS database which indicated that the applicant did not engage in studies over 2014. The applicant was invited to comment on this. The applicant advised the Tribunal that he did engage in studies in a Certificate of Business at a college in Central Station in Sydney but he found the course too hard and he could not remember the name of the college and was not able to provide any evidence corroborative of his enrolment. The applicant stated that he then enrolled in an Advanced Diploma of Tourism followed by a Certificate III in Tourism and a Diploma of Travel and Tourism and that he found these courses difficult and struggled with these courses academically and all of his certificates of enrolment for these courses were cancelled.

14. The applicant stated that he had been enrolled in a Certificate IV in Business from 9 November 2015 to 17 April 2016 and was currently studying a Diploma of Business which started in May 2016 was due for completion in April 2017. The applicant then hoped to continue with an Advanced Diploma in Business, a course running from May 2017 until October 2017. The applicant was undertaking the studies at the Sydney Metro College and the applicant provided evidence corroborative of this.  However the applicant advised that he was failing some subjects in the Diploma course and that he did not expect to finish the course within this time frame and may not finish it until February 2018.  His education provider provided a letter indicating that the applicant had requested to extend his Diploma of Business course for 2 terms, a period of 6 months, and the applicant explained that this was because of poor academic progress in some subjects.

15. The evidence before the Tribunal indicates that the applicant in the first 2 years that he was in Australia struggled academically in the courses that he was enrolled in and failed to make satisfactory academic progress. The applicant stated that he found the course content difficult. The evidence indicates that since the end of 2015 the applicant has been engaged in business studies which he continues to struggle with.  The Tribunal sought evidence corroborative of the applicant’s current academic progress to be provided up to 14 days after the hearing along with evidence from the education provider as to when the applicant would complete the Advanced Diploma. This was not forthcoming as at the date of this decision.  The applicant’s evidence at hearing is that he has been failing subjects in his current course of study and that he does not expect to complete the Diploma until at least February 2018.

16. The evidence before the Tribunal indicates that the applicant has completed studies in information technology in Malaysia, and worked in that field for 6 months prior to coming to Australia on a student visa. The evidence before the Tribunal indicates that there was a significant gap in the applicant’s study after his arrival in Australia and the evidence indicates that courses that the applicant undertook over 2014 and 2015 were not completed and that the certificate of enrolments for all of these courses were cancelled. The evidence indicates that since late 2015 the applicant has been studying a series of business courses at Sydney Metro College. These courses are due for completion in October 2017, however as noted the applicant has been struggling with the courses academically and a letter from his education provider indicates that the applicant will not finish these courses in time and the applicant himself has requested to extend the Diploma of Business course by 6 months to allow him to make satisfactory academic progress.

17. There does not appear to be any direct correlation between the courses that the applicant is studying and his information technology background in Malaysia. The Tribunal raised with the applicant during the hearing the issue of finances and how he was supporting himself as a student in Australia. The applicant claimed that he was being supported by his parents overseas. The Tribunal asked the applicant to provide current bank statements post hearing to the Tribunal supportive of this.  The statements provided post hearing showed intermittent deposits into the applicant’s account but low balances over the term of the statement. The statements also showed that the applicant was regularly making cash deposits and these did not appear to be transferred via overseas remittances and the applicant was making regular debits from the Cheers Bar in Sydney, the Star Casino in Pyrmont, which on the face of the statements suggested that the applicant was engaging in regular social activities outside study.

18. Having regard to the applicant’s study history since he arrived in Australia in November 2013, having regard to the applicant’s study history in Malaysia prior to arriving in Australia and the lack of any correlation between the courses that he has been pursuing in this country to those undertaken in Malaysia, along with the applicant’s poor academic progress over an extended period of time, the Tribunal cannot be satisfied that the applicant is a genuine applicant for stay as a student. The evidence indicates that the applicant is undertaking a number of inexpensive courses as a mechanism of maintaining permanent residence in this country and that the applicant’s academic endeavours in this country have not been successful. The Tribunal notes the applicant has not been able to complete his current courses within time and has already sought a six month extension to complete his Diploma and this in the view of the Tribunal is corroborative of the fact that the applicant is utilising the student visa program as a mechanism to remain permanently in Australia.

19. 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.572.223(1)(a).

20. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. With the exception of Subclass 580, the other subclasses within visa Class TU all contain an identical requirement. For reasons given above, the Tribunal also finds that the applicant does not meet the requirements of these subclasses. In respect of Subclass 580 (Student Guardian) visa, there is no material before the Tribunal that suggests the applicant meets the prescribed criteria for that subclass. As the Tribunal has found that the applicant does not meet a criterion for the grant of a student visa, it must affirm the decision under review.

    DECISION

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

    John Cipolla
    Senior Member