Mohammed (Migration)

[2019] AATA 1151

Mohammed (Migration) [2019] AATA 1151 (7 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Osman Ali Mohammed

CASE NUMBER:  1715479

HOME AFFAIRS REFERENCE(S):           BCC2017/951526

MEMBER:Stephen Conwell

DATE:7 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 07 January 2019 at 10:38am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – not genuine student – using student visa program to maintain ongoing residence in Australia – does not genuinely intend to stay in Australia temporarily – lack of evidence of academic progress – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 27 June 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 10 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. 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;

   f.      ‘359(2) questionnaire’ or ‘359(2) invitation’ refers to the Request for Student Visa Information questionnaire issued by the Tribunal under s.359(2) of the Act.

5. On 13 August 2018 the applicant was invited under s.359(2) of the Act to provide information about her proposed course of study and her entry to stay in Australia as a student. The invitation was sent to the applicant’s migration agent (‘representative’) at the last address provided in connection with the review, advising that, if the information was not provided in writing by 27 August 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. On 24 August 2018 the applicant emailed his response to the 359(2) questionnaire. In his response the applicant consented to the Tribunal deciding his review without a hearing - Question 2. Accordingly the Tribunal will determine the review application “on the papers”.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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.

   Genuine applicant for entry and stay as a student (cl.500.212)

   9. 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 has reviewed the delegate’s decision of  27 June 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.

12. The delegate’s decision in summary notes:

    ·     The applicant was granted his initial Student visa (TU 573) offshore on 21/10/2014 which was valid until 15/03/2017. He subsequently arrived in Australia on 01/11/2014.

    ·     Since his initial arrival onshore he has held either a Student visa or associated bridging visa and he has been residing in Australia as the holder of a Student visa for almost three years.

    ·     The applicant did not provide any evidence of close ties to his home country. The applicant is single and declared that he does not have any parents of siblings in or outside of Australia.

    Examination of his study history in the Provider Registration and International Student Management System (PRISMS) showed that the applicant had been enrolled to undertake Master of Technology (Enterprise Systems) and Master of Information Technology.   He was now proposing to undertake Bachelor of Business which will extend his stay in Australia in excess of five years.

    ·     Based on all the information available, the delegate held serious concerns about the applicant’s true intention in Australia.

    ·     The delegate noted that over the past two years that he has been residing in Australia as the primary holder of a Student visa, the applicant enrolled to undertake two different courses, neither of which he completed.

    ·     The applicant’s education provider Federation University Australia on 24/09/2015 reported him, in relation to Master of Technology, for unsatisfactory course progress and his CoE was subsequently cancelled. In relation to course Master of Information Technology the applicant was again reported by his education provider for unsatisfactory course progress and that COE was subsequently cancelled.

    ·     According to his study history, the applicant has not made significant progression or achieved a reasonable completion level for a student whose primary purpose for being in Australia is to study and progress academically.   He has not successfully completed any courses in the two year period that he has been in Australia as a Student visa holder.

    ·     The delegate had serious concerns regarding the applicant’s motivation to study in Australia. The delegate was not satisfied that the applicant will be compelled to return to his home country on account of any economic reasons and that the limited family ties in India may present a significant incentive for him not to return to his home country.

    ·     The delegate was concerned that the applicant’s intention to live in Australia is motivated by factors other than study.

    ·     The delegate found that the applicant had not completed any course since his arrival in Australia; many of his enrolments had been cancelled for non-payment of fees.

    ·     The applicant had failed to provide a GTE Statement to the Department.

    ·     After weighing up these factors as a whole, the delegate not satisfied that the applicant intends genuinely to stay temporarily in Australia.

13. The Tribunal has reviewed the delegate’s decision which was provided by the applicant along with his application for merits review. This decision is not binding on the Tribunal; the Tribunal brings an independent view to the review application.

14. The Tribunal has regard to the applicant’s completed 359(2) questionnaire. The applicant has not provided a satisfactory explanation for his desire to remain in Australia to pursue further study. Nor is the Tribunal satisfied that his proposed course of study will add value to his stated career or remuneration prospects.

15. There is no evidence pertaining to the following factors indicated by Direction 69 that would prevent him from returning to his home country 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.

16. 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.

17. 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.  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.

18. On the basis of the above, and having considered any 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

19. 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.

20. 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

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

    Stephen Conwell
    Member