Marasi (Migration)

[2022] AATA 2644

Marasi (Migration) [2022] AATA 2644 (15 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kameleon Marasi

REPRESENTATIVE:  Mr Bill Mitroulas (MARN: 1572423)

CASE NUMBER:  2117280

HOME AFFAIRS REFERENCE(S):          BCC2016/3648849

MEMBER:Frank Russo

DATE OF ORAL DECISION:  15 July 2022

DATE OF WRITTEN STATEMENT:         21 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 21 July 2022 at 11:44am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Federal Circuit Court remittal – genuine temporary entrant – proposed courses now completed and long period of non-enrolment – vague plans for future study – relationship with Australian citizen and possibility of applying for partner visa – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2, cls 500.211, 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 Immigration and Border Protection on 3 March 2017 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 2 November 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.

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 (Cth) (the Regulations) because the delegate was not satisfied that the applicant was a genuine applicant for entry and stay as a student.

4. The applicant is a 32-year-old Greek national. At the time of lodging the Student visa application, he was enrolled in a course in English for IELTS, a Certificate IV in Business and an Advanced Diploma of Business, all of which he has now completed.

5. On 24 May 2018, the Tribunal (differently constituted) made a decision in relation to the application for review, affirming the decision of the delegate.

6. The applicant made an application for review to the Federal Circuit Court, and on 19 November 2021 the Federal Circuit Court ordered by consent that the decision of the Tribunal (differently constituted) dated 24 May 2018 be set aside and remitted the matter back to the Tribunal to determine the review according to law, on the basis that the Tribunal (differently constituted) failed to consider that the applicant’s mother was living alone in Greece and he was planning to return to Greece to care for and support her. The matter is now back before the Tribunal pursuant to the Federal Circuit Court’s order.

7. While the issue before the delegate was whether the applicant is a genuine temporary entrant, from the documents before the Tribunal, there is no evidence that the applicant, at the time of this decision, meets the enrolment requirement in cl.500.211(a). The issue in the present case is therefore whether the applicant is enrolled in a full-time registered course, and therefore a course of study, as required by cl 500.211(a).

8. The Tribunal gave its decision on the review at the conclusion of the hearing held on 15 July 2022. The following are the reasons for that decision.

9. The applicant appeared before the Tribunal by telephone on 15 July 2022 to give evidence and present arguments. The applicant was assisted in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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.

12. As noted above, while the issue before the delegate was whether the applicant is a genuine temporary entrant, from the documents before the Tribunal, there is no evidence that the applicant, at the time of this decision, meets the enrolment requirement in cl.500.211(a). The issue in the present case is therefore whether the applicant is enrolled in a full-time registered course, and therefore a course of study, as required by cl 500.211(a).

    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.

15. The applicant gave evidence at the hearing that he arrived in Australia in August 2016, holding a Visitor visa. He stated that after he arrived in Australia, he decided he wished to study here in order to learn some English and to learn about Australia and its multicultural society.

16. The applicant gave evidence at the hearing that he is not currently enrolled in a course of study. When asked why, he stated that he got confused and was waiting to see what was happening with his case and he was unsure what to do. He stated that he has finished all of the courses which he started. He gave evidence that he was previously enrolled in 12-month English course, a certificate IV in Business and an Advanced Diploma of Business, all of which he has successfully completed. He stated that he believes he completed the Advanced Diploma in July or August 2018, though he was not sure in which month. When asked why he has not enrolled in a course of study since then, the applicant again stated that he was confused about what to do, in addition to having a difficult time during the COVID-19 pandemic.

17. When questioned about his current plans, the applicant stated that after his case is decided he will have to decide what to do. He gave evidence that he has a partner who is an Australian citizen, and that he will most likely apply for a Partner visa. He stated that he is living with his partner and they have been in a relationship for approximately three-and-a-half to four years. He confirmed that he has not yet applied for the Partner visa and is waiting for the outcome of his application for review to do so.

18. 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, he was not enrolled in a course of study and therefore the enrolment requirement had become the determinative issue. The applicant confirmed he understood the determinative issue had changed.

19. The Tribunal noted that it had a copy of the applicant’s enrolment records from the Provider Registration International Student Management System (PRISMS) database on file, and that while the information within this document was largely consistent with the applicant’s evidence about his enrolment history, there is some further information contained in his PRISMS record, and therefore the Tribunal would be using the procedure set out in s.359AA of the Act to put the particulars of information from this record to the applicant. 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 to the applicant that according to his PRISMS enrolment record, he has been enrolled in the following courses:

    a.English for IELTS from 7 November 2016 to 17 December 2017, which he finished;

    b.Certificate IV in Business from 8 January 2018 to 8 July 2018; and

    c.Advanced Diploma of Business from 13 August 2018 to 11 August 2019, which was varied on 29 July 2019 because the applicant completed the course early.

20. The Tribunal put to the applicant that this information is relevant because it indicates that he has not been enrolled in a registered course of study since completing the Advanced Diploma of Business on 29 July 2019 (with his enrolment due to end in any case on 11 August 2019). The Tribunal put to the applicant that on the evidence before it, he has not been enrolled in a course of study for a period of approximately 2 years and 10 months, or close to 3 years, and therefore may not meet the enrolment requirement. The Tribunal noted that this information may also be relevant to assessing whether the applicant is a genuine temporary entrant, in particular to assessing his potential circumstances in Australia and his purpose for remaining in Australia. 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.

21. The applicant requested two minutes to discuss the matter with his representative, which the Tribunal granted. The applicant then responded to the information by stating that if he is granted an extension of time, he will organise an enrolment for another course. He stated that he has finished all of the courses that he has enrolled in, but if the Tribunal wants him to do another course, he will do another. The Tribunal explained that it is not a matter of whether the Tribunal wishes for him to do another course, and again explained the Tribunal’s role in applying the relevant criteria for the Student visa. The Tribunal put to the applicant that on his own evidence, and on the information in his PRISMS record, he did not appear to have a genuine interest in studying further in Australia, and now wishes to obtain a CoE primarily to satisfy the enrolment requirement to obtain a successful visa outcome.

22. The Tribunal gave the applicant a further opportunity to respond to the information it had put to him from his PRISMS enrolment record. The applicant responded by stating that the information was subjective. The Tribunal again explained the enrolment criterion for the grant of the Student visa and explained that whether he is enrolled in a course of study is an objective matter of fact for the Tribunal to decide. The applicant responded that he has been waiting four to five years for a Student visa, which he stated is a long time. He then stated that he has lived in Australia for five to six years without a visa (other than a Bridging visa), and he has not had the opportunity to work during this period as he did not have work rights. He stated that when he arrived in Australia, he had sufficient funds for two years of study, but did not have funds for further study after that, given he was unable to work. The Tribunal explained that it is a requirement of the Student visa that a visa applicant have access to sufficient funds to support their stay in Australia.

23. When questioned as to any reasons why the Tribunal should not proceed to make a decision and should grant the applicant an adjournment of the hearing or an extension of time, the applicant stated that he has a new ambition to study, that he has gone through a tough time, and that after 7 years of waiting he deserves a visa. When asked what course he would enrol in, the applicant stated Leadership and Management, which he would study in order to complete his Business studies. When questioned whether he has an offer of enrolment, he gave a vague response, stating that he has some, but he could not say yes to any one of them. When asked from which college he has an offer of enrolment, he stated it was his former college, St Peter’s Institute. When asked what date he obtained such an offer, he stated that he had ‘just been told’ about such an offer. When questioned further, he confirmed that he did not have a written letter of offer. When asked the reasons why he wishes to now enrol in Leadership and Management, he stated it was to complete his courses and to be all completed. When questioned further about his reasons for not enrolling in this course sooner if it was of genuine interest to him, the applicant stated it was because he was confused, because of COVID-19, and because he does not have a permit to work, and therefore it is difficult for him to financially cover the costs of such a course.

24. The Tribunal put to the applicant that the reasons he had provided for not obtaining a confirmation of enrolment did not appear to be sufficient. It put to the applicant the requirement that visa applicants have access to sufficient funds to cover their expenses in Australia, and that while the Tribunal may accept that the applicant experienced some hardship as a result of the COVID-19 pandemic, this does not explain why the applicant would remain unenrolled for a period of close to three years if his purpose for remaining in Australia is to study. The applicant responded that at the time he applied for the Student visa, he had sufficient funds to cover three years of study, but not seven years in Australia.

25. The Tribunal invited oral submissions from the applicant’s representative. The applicant’s representative submitted that when the applicant lodged the Student visa application, he provided evidence of his financial capacity and this was not an issue at the time. He submitted that the applicant completed all of his courses of study on time, which is a strong indication that he is a genuine student. The applicant arrived in Australia holding a Visitor visa, so the conditions of his Visitor visa, including a no work condition, have carried on to his Bridging visas, and he has not had part-time work rights. He submitted that it has also been difficult for the applicant from a psychological point of view, and that part of the experience of being a student in Australia involves immersing oneself in the culture, which includes working part-time. He submitted that it has been a taxing time for the applicant, added to which he has endured the COVID-19 pandemic. He submitted that the applicant is requesting an extension of time as the Student visa cannot be granted without the applicant having a current CoE. He submitted that the applicant is aware of this requirement and was aware of it prior to the hearing, but his instructions are that the applicant would like to complete an Advanced Diploma of Leadership and Management to complement his studies to date, which he has completed on time. He submitted that while there has been a window of two to three years in which the applicant was not enrolled, during this period the applicant did not have work rights, and schools were closed and engaged in remote learning as a result of the COVID-19 pandemic. He submitted that the applicant is now able to resume face-to-face learning, has an exemplary record as a student and is now seeking some additional time to obtain a CoE.

26. The Tribunal put to the applicant that he has been represented in the application for review for approximately six months, and therefore should have received advice regarding the enrolment requirement for the grant of the Student visa. The applicant indicated that he did not wish to respond to this concern. The Tribunal also put to the applicant that the Tribunal had written to him to advise of the requirement to provide documents which he intends to rely upon, at least 7 days prior to the hearing. The applicant indicated that he had no response.

27. After considering the arguments raised by the applicant and his request for postponement or adjournment of the hearing (including the submissions by the applicant’s representative), the Tribunal does not consider the circumstances appropriate for the grant an extension of time or adjournment. The Tribunal considers it reasonable to proceed to a decision in this matter for the following reasons:

    a.The applicant initially gave a vague response to the Tribunal’s question about his future plans. Other than indicating that he will await the Tribunal’s decision, he gave evidence that he is in a relationship with an Australian citizen and intends to lodge a Partner visa;

    b.According to the applicant’s PRISMS record, the applicant has not been enrolled in a course of study since 29 July 2019, when he completed the Advanced Diploma of Business, which is a period of approximately 2 years and 11 months. While I acknowledge that the applicant completed all of the courses of study which he was enrolled in from 2016 to 2019, his enrolment record suggests that he completed all of the courses of study which were the subject of his Student visa application and he does not have an interest in further study;

    c.The applicant told the Tribunal that he could obtain another enrolment if the Tribunal wished him to do so. I have concerns that this does not suggest the applicant has a genuine interest in studying in Australia, but rather that he requested an adjournment of the hearing primarily to satisfy the enrolment criterion for the purpose of obtaining a successful visa outcome;

    d.On 27 June 2022 the Tribunal wrote to the applicant to invite him to attend a hearing. The applicant was advised of the need to provide 7 days before the hearing, any documents that show that he is currently enrolled in a course, or has an offer of enrolment in a course. The applicant did not provide any enrolment-related documents in response to this request, or to a previous hearing invitation;

    e.The hearing notice also drew the applicant’s attention to the Tribunal’s COVID-19 Special Measures Practice Direction – Migration and Refugee Division, paragraph 5.17, which states that if an applicant has applied for review of a decision to refuse the grant of a Student visa, they must prior to the hearing lodge with the Tribunal evidence of enrolment in their course or, if they have been unable to enrol in an approved course, a statement setting out a detailed explanation of their attempts to obtain enrolment;

    f.Despite this, the applicant has not provided any evidence of a current CoE or of a letter of offer, or any convincing evidence that he has attempted to obtain a CoE or letter of offer. I do not find the applicant’s claims that he has several offers of enrolment to be convincing. When pressed further about this claim, the applicant conceded that he does not have any offers of enrolment in writing;

    g.I have considered the applicant’s reasons for not obtaining enrolment after July 2019, but find them to be vague and general. I find that the applicant has had sufficient time to obtain a CoE if he has a genuine interest in further study. While I accept that the applicant may have experienced some confusion as a result of the ongoing appeals and reviews of his application for the Student visa, I do not accept that this is a sufficient reason for remaining unenrolled for a period of close to three years. I have also considered the applicant’s claims regarding the financial difficulties he has experienced as a result of not having work rights, but note that it is a requirement for the Student visa that the applicant have access to sufficient funds, and that it is not the intention of the Student visa programme that an applicant fund their studies or their stay in Australia through the part-time work rights available as a condition of the Student visa, and therefore do not find the applicant’s arguments about his financial situation to be compelling;

    h.I have also considered the additional difficulties which the applicant may have faced as a result of the COVID-19 pandemic, including the closure of some schools and schools moving their training online for periods of time. Even taking into account such difficulties, I find the applicant has had more than sufficient time to obtain an enrolment. This is particularly the case given the applicant’s claim that he now wishes to enrol in a further vocational course in Leadership and Management. The Tribunal considers that there are a wide range of registered education providers that provide CoEs for Leadership and Management courses, and its experience in hearing reviews of Student visa refusals is that CoEs for Leadership and Management courses are readily attainable and remained attainable during periods of the COVID-19 pandemic. The applicant has not provided any supporting evidence of attempts to obtain an enrolment, such as letters or emails of enquiries to education providers;

    i.I have considered the applicant’s representative’s submissions, including his submissions that the applicant completed the courses he was enrolled in until 2019 and has an exemplary record as a student, as well as his claims about the applicant’s lack of work rights, the impact of the COVID-19 pandemic and the psychological effects on the applicant, as well as his claim that the applicant has almost had too much time as a result of the delays caused by the appeals in his application for the visa. However, having considered the evidence as a whole, including my findings above, I do not accept that these are compelling reasons for adjournment of the hearing.

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

2. The applicant has not provided any evidence of a current CoE or offer or enrolment, and on his own evidence, he is not currently enrolled in a course of study. On the evidence before the Tribunal, there is no evidence that the applicant is now enrolled in or has a current offer of enrolment in any applicable course of study.

3. 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.

4. 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

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

   Frank Russo
   Member