Moussa (Migration)

[2018] AATA 3113

Moussa (Migration) [2018] AATA 3113 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Hany Ahmed Hussein Moussa

CASE NUMBER:  1708430

HOME AFFAIRS REFERENCE(S):           BCC2016/3880697

MEMBER:David Barker

DATE:24 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2018 at 7:31am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant criteria – Completed English courses in Australia – Enrolled in various vocational course over 10 years – Latest course cancelled due to non-payment of fees – Delay in arranging for a suitable course enrolment – Decision under review affirmed

LEGISLATION
Education Services for Overseas Students Act 2000 (Cth)
Migration Act 1958 (Cth), ss 65, 359AA
Migration Regulations 1994 (Cth),r 1.03 Schedule 2 cls 500.111, 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 29 March 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 18 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 (the Regulations) because they were not satisfied the applicant intends genuinely to stay temporarily in Australia.

4. The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments.

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

   Background

6. The applicant is a national of Egypt and is 38 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant first arrived in Australia in November 2006 on a Subclass 572 visa and since then had completed an English course, Certificate IV, Diploma and Advanced Diploma of Business, Certificate IV in Frontline Management, Certificate IV in Human Resources, and Diploma in Human Resources. The delegate noted that the applicant has also undertaken English courses on a number of occasions to cover gaps in enrolment and that he has for over 10 years consistently enrolled in courses at the Vocational Education and Training (VET) sector level. The delegate expressed concern that the applicant had on a number of occasions regressed to certificate level courses after completing a diploma or advanced diploma qualification.  The delegate also expressed concern the applicant has changed courses a number of times and that a significant number of the enrolments were cancelled for reasons including: non-payment of fees, non-commencement of studies, ceasing the course and change of enrolment details.  At the time of application for the Subclass 500 Student visa, the applicant indicated he planned to undertake a Certificate IV in Bookkeeping, and following on this, a Bachelor of Business (Professional Accounting) with Elite Education Institute, which would extend his stay in Australia until October 2020.

8. On 19 June 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 18 July 2018. That invitation among other matters, requested the applicant provide evidence of his current studies, evidence of his successful completion of courses, an explanation of any gaps in his enrolment and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by clause 500.212 and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

9. The Tribunal received no submission or other documents from the applicant prior to the hearing.

   The hearing

10. At the start of the hearing the Tribunal provided the applicant with a copy of the PRISMS records outlining his study history in Australia and gave him the opportunity to consider this information.  The Tribunal also told the applicant it would, if appropriate put particulars of information to him from these student records during the hearing.

11. In response to a question as to whether he was currently studying or had a current offer of enrolment in a course, the applicant gave evidence he ceased his studies after the Department refused his application for the Subclass 500 visa. 

12. He said he cannot now recall the exact date upon which he stopped his studies but that he did so as soon as his application was refused.  He explained to the Tribunal that he thought there was no use continuing with his studies as there would be no benefit from the course in relation to his goal of opening a tourism business in Egypt.  Having said this, the applicant told the Tribunal his plan for the future would be to do further study in Australia which would benefit him doing a project in Egypt, or something like that. He said he has mainly studied accounting courses in the past, but the main thing for him since 2006 has been to study as much as he can whilst he is in Australia.

13. The applicant gave evidence he did not commence any paid employment in Australia until after his visa application was refused in 2017 and that before then had relied on money he would bring back from Egypt when he visited there.  He said that since his visa was refused he has worked as a cement renderer.

    Particulars of information put to the applicant pursuant to s.359AA of the Act

14. The Tribunal put particulars of information to the applicant from a recent check of the Provider Registration and International Student Management System (PRISMS) to the applicant pursuant to s.359AA of the Act after first explaining to him this information would, subject to his comment and response, provide the reason, or part of the reason, for affirming the decision under review. The Tribunal explained to the applicant that he could request time to consider his response and that the Tribunal would consider any such request.

15. The particulars of the information were that the Provider Registration and International Student Management System (PRISMS) student record indicates his enrolment in the Certificate IV in Bookkeeping he had told the Department, at the time of his application for the visa, was the reason for applying for a further student visa, was cancelled in June 2017 due to the non payment of fees. There is no indication on the PRISMS records that he is currently enrolled in any course of study, or that he has completed any courses since March 2016.

16. The Tribunal explained to the applicant that this information was relevant because it appears to indicate he is not currently enrolled in a course of study.  The Tribunal told the applicant that if the Tribunal relies on that information it may find he does not meet a threshold requirement for the grant of a student visa and that if the Tribunal finds he is not studying and does not have an offer of enrolment, it will affirm the decision to refuse the student visa. 

17. The Tribunal also told the applicant the information is relevant because, in conjunction with other aspects of his study history which are discussed in the delegate’s decision record, it indicates he has failed to complete a number of courses in which he was enrolled and that there are significant gaps in which he has not been enrolled, or studying since he came to Australia in 2006.

18. The Tribunal told the applicant that if it was to rely on that information it may find he is not a genuine applicant for entry and stay as a student and that he is using student visas to maintain his residency in Australia for other reasons and that if the Tribunal finds he is not a genuine student or that he does not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the Student visa.

19. The applicant told the Tribunal he did not request any further time to consider his response and then  said he that he had no comments or response that he wanted to make in response to the information put to him by the Tribunal.

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. 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.

21. The issue before the delegate was whether the applicant met the criterion in cl.500.212. However, the issue now is whether, at the time of this decision, the applicant meets the enrolment requirements for a student visa.

22. 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.

23. ‘Course of study’ is relevantly defined in cl.500.111 of the Regulations as a ‘full-time registered course’. ‘Registered course’ is defined in r.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, to provide the course to overseas students.

24. The Tribunal has considered the evidence provided by the applicant during the hearing and that contained in the Department and Tribunal files. The Tribunal has noted that the applicant elected to not provide any comments or response to the particulars of information put to him pursuant to s.359AA of the Act regarding the PRISMS records of his studies in Australia.

25. The Tribunal accepts the applicant has enrolled in a number of courses since his arrival in Australia, a number of which he has failed to commence or complete.  The Tribunal accepts he has completed some of these courses but finds that there is an overall lack of academic progression in the applicant’s study history since 2006.   The Tribunal finds the applicant ceased study in a Certificate IV in Bookkeeping course in or around April 2017 and that his enrolment in that course was subsequently cancelled by the employment provider in June 2017 due to the non payment of tuition fees.  There is no evidence before the Tribunal that the applicant has a current offer of enrolment in any course.  The Tribunal has considered these factors and all the other evidence provided by the applicant during the hearing and in the Department and Tribunal files. 

26. 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.

27. 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

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

    David Barker
    Member