Malhotra (Migration)

[2020] AATA 6013

Malhotra (Migration) [2020] AATA 6013 (15 September 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fawad Malhotra

CASE NUMBER:  1921703

DIBP REFERENCE(S):  BCC2015/3907788

MEMBER:Dr Jason Harkess

DATE AND TIME OF

ORAL DECISION AND REASONS:         15 September 2020 at 11:56 am (VIC time)

DATE OF WRITTEN RECORD:                28 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 28 October 2020 at 9:43am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) Subclass 573 visa – not a genuine temporary entrant – intention to comply with student visa conditions – enrolments in various courses over last seven years – cancellation of courses and lack of progress – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cls 573.223(2B), 572.222,573.222, 572.223, 573.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 July 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 573 visa under the Migration Act 1958 (the Act).

2. At the hearing on 15 September 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral statement of the decision and reasons of the Administrative Appeals Tribunal in case 1921703 in relation to an application for review brought by Mr Fawad Malhotra. 

4. The applicant is a citizen of Pakistan and he seeks review of a decision made by a delegate of the Minister refusing to grant him a student visa.  Now, this particular application has somewhat of a protracted history.  I should say, however, not through any fault of the applicant.  But it is important that I refer to that history, first of all, before I move to actually consider the merits of the application.

5. So, the decision which is the subject of review before the tribunal now is a decision that was made by a delegate of the Minister for Home Affairs on 17 July 2019. 

6. It is a decision refusing the grant of a subclass 572 visa to the applicant.  He had made this original application five years ago when the old subclass 570 to 580 visas were still being issued.  It is an unusual case because these days ordinarily it would be a subclass 500 student visa that was applied for, and that would be before the tribunal now.  However, that is not the case because of the protracted history of this matter.

7. The applicant applied for a visa at a time when the old subclass visas were in place.  And, generally speaking, what would happen when an application for a student visa was made then, the specific type of subclass that was considered by the primary decision maker depended on a number of considerations including the type of course in relation to which the applicant is enrolled or has an offer of enrolment as their principal course. So, it could be subclass 570 to 575. For certain applications made on or after 24 March 2012, whether he was an eligible higher degree student, which could possibly attract a subclass 573 or 574 visa, or whether he was an eligible university exchange student which would be a subclass 575 visa, or whether the application was supported by the relevant Minister, or whether or not he was applying as a student guardian, which is a subclass 580 visa.

8. As I said, those regulations have since been amended after the applicant applied for this visa, but they were certainly applicable at the time he made his visa application which was on 16 December 2015.  So those are the ones that are relevant because I have to determine whether or not he meets the criteria now in relation to those provisions that applied when he actually made the application.  So that is why I am looking at now. 

9. Now, in terms of the procedural history, I should refer now to the decision of the delegate which, as I said, was the most recent decision, that is the one that is before me for review is the one that was made on 17 July 2019.  And the delegate there has set out the pertinent information.  That is, the name of the applicant, date of birth, date of his visa application and the fact that it is a 572 visa that is being considered.

10. And it is also a 572 visa that is being considered by the tribunal now, and that is because of the nature of the proposed course enrolment that he has put before the tribunal now which are known as Vocational Education and Training Sector courses.  That is a 572 visa which he will be seeking to meet the criteria of, as opposed to a 573 visa.  So, it is the 572 considerations. 

11. The delegate referred to the fact that the applicant had originally been granted his initial subclass 573 visa offshore when he still in Pakistan on 9 January 2014, and that was valid until 15 March 2017.  He then arrived on 16 January 2014.  Information from the PRISMS database indicated that a Bachelors degree was cancelled on 24 August 2014 and that then resulted in cancellation procedures which were initiated by the department on 14 December 2015.

12. And his visa then was cancelled under section 116 of the Act.  So, then he subsequently applied for this visa on 16 December 2015.  He had initially applied for a dependent visa on 5 September 2016.  That application was refused on the basis that the delegate found he did not meet public interest criterion 4013.  And so, he did not satisfy clause 573.333A of the Regulations as they then applied. 

13. He then sought a review of that before the Administrative Appeals Tribunals.  And then on 1 November 2018 the tribunal, constituted by a different Member, remitted the application to the department for reconsideration and directed the department that the applicant did meet public interest criterion 4013 for the purposes of clause 573.224A of Schedule 2 of the Regulations.

14. Now, information in the decision of the tribunal also directed the Department to now consider the applicant as the primary applicant for a student visa and that there was evidence of an Advanced Diploma of Business.  So that was the basis upon which the delegate came to reconsider the application on 18 December 2018.

15. A letter was sent to the applicant’s new migration agent requesting documentation relating to finances, which is one of the criteria, that is to meet the access to finances criteria.  And there was no information that was replied, and so the visa was then refused by the delegate as a result of failure to provide information and relating to finances, and so it was refused on a different basis, 573.2232A.

16. The applicant then lodged an appeal to the Administrative Appeals Tribunal again, and that came before the tribunal, in fact the present Member, in 2019 and an oral decision was made in favour of the applicant and that decision was subsequently produced in writing in a decision record of 21 May 2019, and it indicated that the tribunal remitted the application back to the department for reconsideration with a direction that the applicant met essentially the access to finances requirement for the purposes of clause 5A(508) of Schedule 5A. 

17. So, in summary, what that means so far is that the applicant’s visa was refused previously on two bases and then upon review on two different occasions the tribunal has found in his favour on those previously refused bases.  And so now the department again continues to process the visa application and now moves on to other criteria.

18. In this particular case it was what is known as the GTE criterion, whether the applicant is genuine applicant for entry and stay as a student as it then applied under the 572 subclass so that ultimately, as the delegate goes on to explain in the decision, they are not satisfied that the applicant met the criteria – the GTE criterion.  That is, they were not satisfied that he intended genuinely to stay in Australia temporarily either under the subclass 572 provision, which is 572.223(1A), or alternatively the same GTE requirement in the equivalent 573 regulations.  And so that is where it is at, and it comes before me now on that particular basis.  That is, the determinative issue before the delegate was whether or not the applicant genuinely intended to remain in Australia temporarily as a student.

19. Now, I will get to further issues in a moment, but I should say first of all that the applicant participated at this hearing, this review application today, on 15 July 2020 to present evidence and give arguments.  And the issues for determination that the tribunal has identified prior to today before it made arrangements to convene this hearing are firstly whether the applicant is currently enrolled, or has an offer of enrolment, in a registered course of study as required by clause 572.222, or 573.222 of Schedule 2 of the Regulations, as they then applied.  So, I need to be satisfied of that.  Secondly, whether he is a genuine temporary entrant, as required by clause 572.223 or 573.223 of Schedule 2 of the Regulations.

20. That was obviously the issue on which he failed to satisfy the delegate of.  And, thirdly, whether he is a genuine applicant for entry and stay as a student,  having regard to his stated intentions to comply with the conditions of a student visa and any other relevant matter as required by clause 572.223(2B) or clause 573.223(2B).  I will refer to those as the conditions compliance criterion.  I need to be satisfied of all of those things for the applicant to have any prospect of a successful student visa application. 

21. The critical issues today really are not so much the GTE criterion, but more the intention to comply with the conditions of a visa were one to be issued to him.  Now, I should explain first of all what the conditions, or at least the essential conditions, of a student visa are.

22. The conditions of a visa - there are many conditions of all visas - but with student visas in particular the essence of them is that they must demonstrate an intention to remain enrolled in a registered course of study, to make satisfactory course progress and also to attend classes and not to downgrade their courses.

23. Now, why that is an issue is because prior to the convening of this hearing today the tribunal, in preparation for this hearing, conducted a search of the Australian government’s PRISMS database which houses all details relating to international students’ enrolments in registered courses of study.  Whether they have completed those courses or whether their enrolment has been cancelled.  And it gives some indication as to reasons for those cancellations.

24. And the tribunal conducted a search in relation to the applicant on 7 August 2020.  And what that revealed is that the applicant has been here it would seem as a student, purportedly as a genuine student, for the last seven years.  He has enrolled in many courses.  I have already indicated some of what the delegate has said that the original plan was to enrol in and successfully complete a Bachelor of Business.  That did not occur, and various enrolments were cancelled.  The PRISMS report indicates that there were deferments; there was suspensions of the enrolment for compassionate or compelling circumstances.  There are enrolments in Diplomas of Business, Advanced Diplomas of Business, all of which appear to be cancelled.

25. In the course of evidence, the applicant admitted that he has been here for seven years, purportedly as a student, and not successfully completed anything. Now that pattern is concerning, and so pursuant to section 359A of the Migration Act on 10 August the tribunal wrote to the applicant and outlined particulars. In fact, it included an entire copy of the PRISMS report.

26. The concerns of the tribunal first of all were that he was not currently enrolled and that would mean he does not meet the enrolment criterion.  I should say that has now been cured, that particular problem.  But the enrolment history was also brought to his attention.

27. And what he was told in that letter was that his enrolment history demonstrates a pattern of course enrolments and cancellations over the last seven years without him having successfully completed any course during that time. 

28. He was told in the letter that the information was relevant to his review application because it suggests that he does not have an intention to comply with the conditions of a student visa that oblige to remain enrolled and make satisfactory course progress and attend classes in relation to a proposed course of study.  It is an objective pattern which is, quite frankly, appalling for somebody who claims to have been a student here for so long.

29. But, in fairness to the applicant, as required by section 359A, he was invited to comment on that information and also the tribunal has expressed concern that if it accepts this information and relies on it, it would lead to a decision against him on the basis that the tribunal would not be satisfied that he actually intends to comply with his obligations to be a good student, go to class, maintain enrolment, make satisfactory course progress. It is a seven-year pattern which demonstrates a terrible history indeed. He replied to that, as he should have replied to it, and he sought to explain - well, first of all, he sought to explain the issue and concern about enrolment.

30. He tried to explain in his letter why he had not been enrolled, and he said that since his visa has been cancelled, he found difficulties in enrolling and maintaining a current COE.  He said that his bridging visa did not give him study rights and his bridging visa E is one of those visas which may very well have the imposition of conditions that impose various restrictions, because it is not just a refusal decision it is a cancellation decision that has been operating, and he has had to deal with.  So, studying would be in breach of that condition.  And so, he said that he has had great difficulty studying when his original visa was cancelled.  Also in relation to the particular concern about the seven year pattern, he said that the PRISMS history is due to the circumstances where he had to have a valid COE but neither the course provider nor his visa status would allow him to maintain studying legally.

31. And any course provider that he approached would only issue the COE to begin studies immediately, but then failure to do so afterwards would result in cancellation.  He reiterated that concern at the tribunal hearing today.  He stated in his letter that he hoped that the tribunal would consider that he has been trying to do his best in the circumstances to get his education and build a better future for him and his family. 

32. He has also provided, in support of his statement, his response to the section 359A, a VEVO check which certainly confirms his visa status, that he has a ‘no study’ restriction. And also supporting documentation relating to medical issues that he had in 2014 and 2015 but which he now says he has recovered from.

33. And also, his mother’s health issues that have obviously caused him some considerable distress.  And in the course of the hearing he implored to the tribunal to give him the opportunity to complete the courses which he is now enrolled in, and I do accept that he meets the enrolment criterion. 

34. He also referred to the difficulties he has had in trying to get enrolled and maintain an enrolment.  He says that he wants to complete his courses that he has most recently enrolled in.  I accept that he, as I sit here, has enrolled in a Diploma and Advanced Diploma.  And he also referred the tribunal to all of the previous documents relating to his circumstances bearing upon the GTE criterion.

35. It is unnecessary to refer to those, because as I said the issue here is whether or not he intends to comply with the conditions.  He has demonstrated at least by his oral evidence that he has declared that he intends to comply with the conditions of the visa, but that does not overcome the terrible history, the seven-year history.  He has had seven years to actually make progress.  I do not accept the applicant’s explanation that his visa status has restricted him from making headway, in terms of his study efforts. 

36. The tribunal drew his attention to the fact that he was at liberty to apply to the department to have the ‘no study’ restriction removed.  The tribunal is familiar with that process taking place, having dealt with many other visa applicants in his situation.

37. The applicant stated that his agent said that he was not able to do that, or at least he appears to have been unaware of that.  The tribunal is not satisfied that is a satisfactory excuse despite the applicant’s declared intentions that intends to study. The seven-year history as demonstrated by the PRISMS report is overwhelming in terms of undermining that intention.  I can therefore not be satisfied that the applicant intends to comply with the conditions of a subclass 572 visa or 573 visa were one to be issued to him.

38. Accordingly, the time now is 11.56 am on 15 September 2020.  The tribunal affirms the decision not to grant the student visa.

    DECISION

39. The Tribunal affirms the decision under review.

    Dr Jason Harkess
    Member