Masrath Fathima (Migration)

[2018] AATA 3360

Masrath Fathima (Migration) [2018] AATA 3360 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Masrath Fathima .
Mr Zakeer Hussain
Miss Farzeen Hussain
Miss Juwariyah Hussain

CASE NUMBER:  1617776

DIBP REFERENCE(S):  BCC2016/1009944

MEMBER:M. Edgoose

DATE:13 August 2018

PLACE OF DECISION:  Melbourne, Victoria

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 13 August 2018 at 3:21pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Genuine temporary entrant criteria – Enrolled in 20 courses over 9.5 years – Has not completed a course since 2015 – Use of student visa program to maintain family’s ongoing residency – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), 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 decisions made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 March 2016. The delegate decided to refuse to grant the visas on 10 October 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 was not satisfied that the applicant genuinely intend a temporary stay in Australia.

4. The applicant was initially scheduled to appear before the Tribunal on 6 June 2018 at 1:30pm. On 5 June 2018 a medical certificate (AAT Folio 63) was submitted to the Tribunal which stated the applicant had had a fall and suffered a head and back injury. The Member granted the applicant a postponement.

5. On 7 June 2018 a rescheduled hearing invitation was send to the applicant via email (AAT Folio 75) for the applicant to appear before the Tribunal on 2 July 2018 at 9:30am.

6. The Tribunal notes that at the time of the first hearing date of 6 June 2018 the applicant was not enrolled in a course of study.

7. On 22 June 2018 the applicant enrolled and obtained a Confirmation of Enrolment in an Advanced Diploma of Marketing and Communication (AAT Folio 91b).

8. The applicants appeared before the Tribunal on 2 July 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

11. 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)     …

12. 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.

13. 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.

    Background and applicant’s immigration history

14. The applicant is from India and first arrived in Australia on 2 February 2009 on a 572 student visa.

15. The applicant applied for this visa on 9 March 2016 and the delegate refused to grant the visa on 10 October 2016 on the basis that the ‘Genuine Temporary’ entrant criterion, or GTE criterion which applies to every student visa, was not met. The GTE criterion requires that the applicant is a genuine student because the applicant intends to stay in Australia temporarily when assessed with consideration of the factors outlined in Ministerial Direction 53.

16. The applicant informed the Tribunal that Australia is the only country she has travelled to outside of India and that she has only departed Australia on one occasion in March 2011 to visit family and friends back in India for a period of one month since arriving in every 2009.

    The applicant’s circumstances in their home country

17. Before coming to Australia, the applicant had completed high school and studied computer programming for one year and that she had never worked back in India. The applicant’s parents, one sister and three brothers are back in India and one sister lives in Dubai. The applicant’s family runs an automotive and clothing business.

18. The applicant informed the Tribunal that she has been able to manage personal relations with his parents, sister and three brothers back in India while living in Australia by making contact on a weekly basis via the social media application WhatsApp. In these circumstances, the Tribunal does not consider the applicant’s personal connections overseas as a distinct incentive for the applicant to cease residence in Australia.

19. The applicant said to the Tribunal that she had not completed her studies back in her home country because Australia has a good education sector and having an Australian degree is better than one achieved back in India. The Tribunal gives little weight to the applicant’s evidence.

20. The applicant stated to the Tribunal that she has no issues of concern back in India.

    The applicant’s potential circumstances in Australia

21. Adopting the procedure in section 359AA of the Act, the Tribunal read out the following statement to the applicant.

    Masrath Fathima, I am going to share with you information from a Departmental database.

    It is called PRISMS (the Provider Registration and International Students Management System) and it tracks, based on information reported by Australian education providers, the enrolment and education achievements of international students in Australia.  I have a PRISMS report dated 18 December 2017.

    The information from PRISMS is:

    1.        PRISMS show you have enrolled in 20 courses during the almost 9.5 years you have been in Australia.

    2.         PRISMS report also shows that many of the courses you have enrolled in have the same course title or name and hence are repetitive or overlap. 

    3.        PRISMS show 12 of the courses you enrolled in are recorded as being cancelled

    4.        PRISMS show 8 of the courses you enrolled in are recorded as being finished.

    5.        PRISMS show you have not completed or graduated in a course of study since November 2015.

    6.        PRISMS show you do not currently hold a valid COE for enrolment in an approved course.

    This information is relevant because it shows that you have not started, have cancelled or not completed all courses you have enrolled in since November 2015. It indicates a lack of academic progress that in the absence of other explanation is not consistent with you intending to live in Australia temporarily.

    If the Tribunal relies on this information in making its decision, it may lead me to believe that you are not a genuine student, and that you do not meet cl.572.223. If the Tribunal so finds, this information would be a reason, or part of the reason, for me to affirm the decision of the Department in your case and refuse your application for a student visa.

    I invite you to comment on or respond to that information. You do not have to respond or comment now. You may seek additional time to comment on or respond to that information. If you do want additional time, I will consider your request and will grant you a reasonable amount of time to consider the information I have given to you and to consider your response to that information.

22. The Tribunal enquired if the applicant understood the s.359AA statement. The applicant advised she understood the s.359AA statement. The applicant’s sought additional time of 2 months. The Tribunal gave consideration to the applicant’s request for additional time and the request was not granted. The Tribunal granted the applicant 15 minute additional time to consider her response. The reason the applicant was not grant further time by the Tribunal to consider her response was that at the time of the initial scheduled hearing on 6 June 2018 the applicant was not enrolled in a course of study and the applicant had not completed a course of study since November 2015.

23. The applicant responded to the Tribunal that the last course of study she had completed and graduated in was the Advanced Diploma of Management on 22 November 2015. The applicant claimed that the education provider for the Diploma of Marketing and Advance Diploma of Marketing closed down in January 2018 and that the applicant had been seeking a refund on the fees she had paid. The Tribunal does not accept the applicant’s claims regarding the Diploma and Advanced Diploma of Marketing as the PRISMS report was obtained on 18 December 2017. At the time of the PRISMS report the COE’s had already been cancelled. Considering the applicant’s oral evidence that she has not completed a course of study since 22 November 2015 the Tribunal finds the student visa program is being used to circumvent the intentions of the migration program and to maintain ongoing residence in Australia.

24. The applicant responded to the Tribunal that she did not enrol in the Certificate IV in Hospitality (Patisserie) between 3 May 2010 and 19 September 2010. However the applicant told the Tribunal that she did enrol in the Certificate IV in Hairdressing between 3 May 2010 and 19 September 2010 and the Diploma on Hairdressing Salon Management between 4 October 2010 and 17 April 2011 but did not do the course. The Tribunal considers that this is not the behaviour of a genuine student and a genuine temporary entrant.

25. The applicant informed the Tribunal that her husband and two children are in Australia and are dependants on her visa. The Tribunal considers that this would present as a strong incentive for the applicant and her family to remain in Australia where the eldest children has settled into his local primary school. 

26. The applicant submitted to the Tribunal a Confirmation of Enrolment for an Advanced Diploma of Marketing and Communication (AAT Folio 91b) through International College of Melbourne which commenced on 25 June 2018 and is due for completion on 22 December 2019. The Tribunal notes the applicant only obtained this enrolment on 22 June 2018 and paid the AUD $1500 initial pre-paid tuition fee. No evidence of this payment was submitted to the Tribunal. Considering the course had started on 25 June 2018 one-week before the hearing the Tribunal asked the applicant what the course was about. The applicant said to the Tribunal that the course is about marketing and communication and that she had only attended an introduction session. The applicant when questioned further by the Tribunal about the specific subjects within the course was not able to provide any further detail and admitted that she doesn’t know anything about the course. The Tribunal considers that a genuine student would have completed a level of research into the course and its content before enrolling. The Tribunal finds that the applicant has only enrolled in a course of study to meet the requirements for a student visa and that the applicant is using the student visa to maintain ongoing residence in Australia.

27. The Tribunal has had regard to the applicant’s submission to the Tribunal dated 29 May 2018 (AAT Folio 122b – 124) that mentioned the courses the applicant has completed since arriving in February 2009 and the desire to complete a Bachelors and Master’s degree in Hospitality Management before returning to India. The applicant mentioned about her husband having sacrificed his personal life so that she could complete her studies, that she is an optimistic and resilient person and has career dreams and goals for the future. The applicant referred to her courses between 2016 and 2018 where she stated she had paid the course fees in full but the education provider closed in October 2017. The Tribunal does not accept the applicant’s claims that her husband has sacrificed his personal life so that she could complete her studies. If this was so the applicant would have completed her planned Bachelor and Master’s degrees in the almost 10 years she has been in Australia and returned to India where her future plans could have been put into action.  

28. Since arriving in Australia on a 572 student visa in February 2009 the applicant has completed a range of low fee paying certificate, diploma and advanced diploma VET level courses and has not progressed academically into the higher education sector. The applicant completed VET sector courses in the areas of English for academic purposes, management, hospitality and business. As stated by the applicant the last course of study that was completed was on 22 November 2015.

29. The applicant informed the Tribunal that she currently rent for AUD $1520 per month in Altona Meadows with her husband and two children. Both the applicant and her husband don’t work and receive financial support from their families back in India. The applicant said to the Tribunal that her husband primarily takes care of the children so that she can remain focused on her studies. The Tribunal does not accept this explanation considering the applicant has not completed a course of study since November 2015 and that her enrolments in the Diploma and Advanced Diploma of Marketing were cancelled according to the PRISMS report dated 18 December 2017.

    Value of the course to the applicant’s future      

30. The applicant informed the Tribunal that her future dreams and plans are to open her own hotel back in India after she has completed a Bachelors and Master degree in Hospitality Management in Australia. The applicant said to the Tribunal that the value of her current course of study was very important although as stated in paragraph 22 the applicant was not able to tell the Tribunal anything about her current course of study and admitted that she doesn’t know anything about the course. The Tribunal considers the applicant has already gained the relevant certificate, diploma and advanced diploma qualifications that would enable the applicant to open her own hotel back in India and has ample opportunities over the almost 10 years she has been in Australia to have completed courses at a Bachelor or Master’s degree level.

31. The Tribunal has significant concern that the value of the current course of study now proposed does not lie outside Australia, but in the grant of further student Visa for the purposes of continue residency in Australia. The Tribunal has no confidence that the study now proposed will be completed and therefore has no confidence that the applicant will depart Australia. The Tribunal finds that the applicant intends to apply for further student visas to maintain continued residence in Australia where the applicant plans to study for the first time at the higher education sector level.

32. The applicant when questioned by the Tribunal about being a genuine student and a genuine temporary entrant quickly responded that she is a genuine student but did not respond to being a genuine temporary entrant. The Tribunal finds the applicant is using the student visa to maintain ongoing residence in Australia.

33. There is no relevant evidence regarding the following factors indicated by Direction 53 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, political circumstances in the home country, civil unrest in the home country, remuneration the applicant could expect to receive in the home country compared with Australia, circumstances in the home country relative to Australia or any other country and the applicant’s circumstances in the home country relative to others in that country.

34. It is the Tribunal’s view that the applicant and her family have settled into the way of life in Australia and its education system for both the applicant and her children. The applicant’s children have never departed Australia and the Tribunal finds the main purpose of being granted the student visa is to maintain ongoing residence in Australia.

35. 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).

36. 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.

    Secondary applicants

37. Zakeer Hussain (DOB: 5 May 1975)

    As the primary applicant was found not to meet cl.572.223 dependent applicant Zakeer Hussain does not satisfy cl.572.322(b). It should be noted that as the applicant Zakeer Hussain has been found not to satisfy cl.572.322(b) no further assessment with regards to this applicant has been undertaken. In addition there is no evidence to support cl.572.322(a).

38. Farzeen Hussain (DOB: 14 January 2011)

    As the primary applicant was found not to meet cl.572.223 dependent applicant Farzeen Hussain does not satisfy cl.572.322(b). It should be noted that as the applicant Farzeen Hussain has been found not to satisfy cl.572.322(b) no further assessment with regards to this applicant has been undertaken. In addition there is no evidence to support cl.572.322(a).

1. Juwariyah Hussain (DOB: 10 March 2014)

   As the primary applicant was found not to meet cl.572.223 dependent applicant Juwariyah Hussain does not satisfy cl.572.322(b). It should be noted that as the applicant Juwariyah Hussain has been found not to satisfy cl.572.322(b) no further assessment with regards to this applicant has been undertaken. In addition there is no evidence to support cl.572.322(a).

   DECISION

2. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

   M. Edgoose
   Member