Prela (Migration)

Prela (Migration) [2018] AATA 4327 (17 September 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kristian Prela
CASE NUMBER:  1811990
HOME AFFAIRS REFERENCE(S):           BCC2018/861987
MEMBER:Warren Stooke AM
DATE:17 September 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.

Statement made on 17 September 2018 at 1:30pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 – Genuine temporary entrant – No completion of courses since arrival – Non-attendance – No study plan – Decision under review affirmed
LEGISLATION

Migration Act 1958, ss 65, 499
Migration Regulations 1994, Schedule 2, cl 500.212
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 April 2018 to refuse to grant the applicant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 22 February 2018. 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.
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 during the period of residence the applicant had not completed any course since arriving in Australia on an ETA on 9 February 2018 and the grant of a Student TU subclass 572 visa on 30 June 2016; had no study plan; had not travelled outside the country and demonstrated no progression in a study path.
The applicant appeared before the Tribunal on 25 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Yang Yee KWAN. The Tribunal hearing was conducted with the assistance of an interpreter in the Albanian and English languages.
The applicant was assisted in relation to the review by their registered migration agent.
The Tribunal, as background to the hearing, reviewed in general, the observations and commentary made by the delegate in the decision, noting that the hearing as presently constituted provided a fresh review of the matter and that the Tribunal was not bound by the determination of the delegate.
At the commencement of the hearing the Tribunal confirmed that the applicant had read the delegate’s decision of 6 April 2018, a copy of which was provided to the Tribunal by the applicant.
The applicant confirmed to the Tribunal that the delegate’s decision arose out of his non-attendance.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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 is a genuine entrant for the purposes of entry and stay as a student having resided in Australia more than two and a half years without completing any course of study.
The applicant is a 23 year old from the United States of America, who has ethnic origins and family in Albania. In this regard, the applicant and his sister, who is a medical practitioner are both citizens of the USA.
The applicant initially arrived in Australia on a tourist visa ETA (Class UD) (Subclass 601) visa on 18 February 2016, which permitted him to remain until 18 May 2016. On 30 June 2016, the applicant, whilst residing in Australia on his second tourist visa, made an application to be granted Student TU (Subclass 572) visa, which was granted on 11 July 2016 and would remain in effect until 15 March 2018.
At the time of the delegate’s decision the applicant had resided in Australia for 778 days and had not completed any course of study.
The delegate’s decision identified from the Provider Registration and International Student Management Systems (PRISMS) that the applicant was enrolled in the following courses of study in Australia and discontinued every course:
·Diploma of Hospitality from 18 July 2016 to 8 July 2017. This certificate of enrolment was cancelled on 7 December 2016 due to non-payment of fees. The applicants last day of study is noted as 5 August 2016.
- Certificate III in Commercial Cookery from 16 January 2017 to 15 January 2018. This certificate of enrolment was cancelled on 25 July 2017 as the applicant left the provider and transferred the course to another provider. The applicant’s last day of study is noted as 22 May 2017,
- Advanced Diploma of Hospitality from 24 July 2017 to 23 December 2017. This certificate of enrolment was cancelled on 7 December 2016 as this course was part of a packaged course, where the initial certificate of enrolment was cancelled due to non-payment.
Further, the delegate identified in the decision that the applicant, at the time of decision, was proposing to undertake the following study in Australia:
·Certificate III in Commercial Cookery from 7 August 2017 to 6 August 2018. It is noted the applicant has commenced studies.
·Certificate IV in Commercial Cookery from 20 August 2018 to 18 February 2019. Diploma of Hospitality Management from 4 March 2019 to 2 September 2019.
·Advanced Diploma of Hospitality Management from 16 September 2019 to 4 May 2020.
At the time of hearing, the applicant gave evidence that he was not currently undertaking any study but had paid an initial fee of $700 to undertake a Certificate III in Commercial Cookery, which was scheduled to start on 6 August 2018 and complete on 5 August 2019.[Tribunal Folio 41]
The applicant gave evidence that his father was a high achiever and has a summer complex in Albania, which his brother is managing and that he wanted to gain experience and make him proud. He also stated that his parents have a ‘green card ‘ to reside in the USA, however they live in Albania.
The applicant confirmed to the Tribunal that he came to Australia on two visitor visas and then decided to study a course in Australia in Hospitality Management and that Melbourne was considered as the food capital. He stated that schooling was not his priority and he wanted to become a body builder.
The applicant gave evidence that he met his partner in Australia and that she is an Australian citizen and Registered Nurse, who also assists with their rent along with his father. The applicant stated that his partner had met his sister.
The applicant gave evidence that he does not work, but intends to start a part-time job with cooking in the kitchen in his uncle Tony’s business, who is his God-father.
The Tribunal explained to the applicant that his non-attendance and non-completion of courses was in breach of criteria 8202, which the applicant said he accepted was a breach of the visa conditions.
The applicant stated that he had opportunities in both the USA and Albania and he responded with a “no’ to the Tribunal question – “Is there any reason that would preclude you from returning to the USA?”
The applicant also confirmed to the Tribunal that he has no obligation to undertake military service.
The applicant stated to the Tribunal that he regrets the mistakes he has made and sought a second chance.
The applicant gave evidence that he and his partner will to the USA, if required. He also stated that it is his intention to return to Albania at the completion of his course in August 2019. He stated – “I will move back to Albania. I will be totally fine. My girlfiend will easily find a job”.
Witness – Ms Yang Yee Kwan
Ms Kwan confirmed in evidence that she was the applicant’s partner and was working as a Registered Nurse in a Victorian Rehabilitation Centre in Glen Waverly. She stated that she had know the applicant for one and one-half years and that they live together.
The witness stated that she will support the applicant and help him finish and then they will move to New York. She stated, she had also thought about Albania as an option.
The representative for the applicant stated that the applicant “has clearly not made the best of opportunities” and sought the consideration of the Tribunal “to give it one last shot, if possible”.
Genuine applicant for entry and stay as a student (cl.500.212)
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?
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.
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.
The Tribunal is cognisant of the fact that the applicant arrived in Australia as a tourist and sought a second Tourist visa, which at the time of both applications the applicant had no intention to pursue studies. The applicant then applied for a succession of courses in Hospitality and Cookery, none of which were completed and in two instances the courses were cancelled for the non-payment of fees.
The applicant was open about his lack of interest in studying and confirmed to the Tribunal that it was his preference to be a body building. He stated in discussion that his prime driver was to make his father proud of him, given that his siblings have achieved success. The Tribunal is not satisfied that the applicant has a genuine desire to study, which, in the Tribunal’s view, is impeded by a significant level of immaturity and the sanctity that the applicant’s father will provide a future for him.
The applicant does not have any reason that would preclude him from returning to the USA or Albania, including a requirement to undertake military service and the Tribunal is satisfied that the applicant’s partner is prepared and expects to move to either New York or Albania. As such, there is no compelling reason for the applicant to remain in Australia.
The Tribunal is satisfied that there are no reasons pertaining to Ministerial Direction 69 that would affect the applicant’s return to either the USA or Albania.
On the basis of the above, 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).
Does the applicant intend to comply with visa conditions?
For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.
A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).
The applicant confirmed to the Tribunal in evidence that he has breached visa criteria 8202 by non-attendance at course; discontinuing studies and the non-payment of fees. As such, the Tribunal is not satisfied that the applicant having previously breached visa conditions is likely to comply with visa conditions in the future.
On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
Conclusion on cl.500.212
The weight the Tribunal has given to the applicant’s responses concerning ties to his homeland do not outweigh the cumulative concerns it has in relation to whether the applicant is essentially using the Student visa program to maintain his residency in Australia. Further, the Tribunal is of the view that it is doubtful that further studies in the absence of concrete evidence of progression academically will provide improvement in his employment options in his home country, especially given that the course intended to be undertaken at the Certificate III level is elementary and could have been undertaken in the time already elapsed in Australia, purportedly for study purposes.
Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for temporary entry and stay as a student because the Tribunal is not satisfied that the applicant intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.
Overall, on the basis of the above, 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).
On the basis of the above, the Tribunal is not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).
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.
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
The Tribunal affirms the decision not to grant the applicant a Student (Temporary) (Class TU) visa.
Warren Stooke AM
Member

[2018] AATA 4327

17 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice