Saeed (Migration)

[2017] AATA 936

Saeed (Migration) [2017] AATA 936 (20 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rana Zahaib Saeed

CASE NUMBER:  1608795

DIBP REFERENCE(S):  BCC2016/784562

MEMBER:Mara Moustafine

DATE:20 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 20 May 2017 at 10:33am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 573 Higher Education Sector – Genuine temporary stay – Enrolment cancelled due to non-commencement of studies – Twelve month gap in studies – Disputed claims of course completion – Inaccurate employment records

LEGISLATION

Migration Act 1958, ss 65, 359AA, 499

Migration Regulation 1994, Schedule 1, Schedule 2, cl 573.223

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 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 arrived in Australia in August 2012 on a TU 573 Student visa, which was valid until 15 March 2016, under streamlined visa processing (SVP) arrangements to study Certificate IV, Diploma and Advanced Diploma of IT at TAFE leading to a Bachelor of IT at the Australian Catholic University (ACU). The applicant applied to the Department of Immigration for another TU 573 Student visa to study Bachelor of Business Information Systems at the Australia Institute of Higher Education (AIH) on 25 February 2016. The delegate decided to refuse to grant the visa on 26 May 2016.

3. 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).

4. The Department refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.573.223 of Schedule 2 to the Regulations as they were not satisfied that the applicant genuinely intended a temporary stay in Australia.

5. The applicant applied to the Tribunal for a review of this decision on 15 June 2016. He was represented in relation to the review by his registered migration agent.

6. On 3 May 2017, ahead of the hearing, the migration agent emailed to the Tribunal a Confirmation of Enrolment in Bachelor of Business Information Systems (B.BIS)(02/05/2017 to 16/11/2018) issued on 2 May 2017; a Reference Letter from AIH dated 2 May 2017 stating that the applicant was a current student who commenced studies in the B.BIS on 23 November 2015 and was expected to complete on 16 November 2018 and an Interim Transcript from the Institute for his B.BIS, which indicated: 2 unit pass; 1 unit distinction; 3 units credit granted (Advanced Standing); 4 units fail, 1 unit withdraw without failure.

7. The applicant appeared before the Tribunal on 4 May 2017 to give evidence and present arguments. The applicant was

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 573.

10. The issue in the present case is whether the applicant meets the time of decision criterion in cl.573.223. Clause 573.223(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)     …

11. 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.

12. 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.

13. At hearing, the Tribunal outlined to the applicant that the purpose of a Student visa was for an applicant to study a registered course and progress academically and that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal discussed with him the reasons his Student visa had been refused in the context of the Genuine Temporary Entrant criterion and explored with the applicant his circumstances in Pakistan and Australia, his immigration and study history and other relevant matters. The Tribunal noted the issues of concern raised by the delegate as addressed in the GTE statement which the applicant had provided to the Department, including his breach of visa condition 8516, when his enrolment in his Bachelor of IT at ACU, an approved SVP provider, was cancelled due to non-commencement of studies and he enrolled in AIH, which was not an eligible SVP education provider; and and visa condition 8202 because of the gap in his studies between 31/12/13 and 09/02/2015.

14. The applicant told the Tribunal that, since arriving in Australia in 2012, he had completed a Certificate IV and Diploma in IT Networking at TAFE but did not finish his Advanced Diploma of IT because he did not pass and claimed that he stopped studying this course in February 2014. He confirmed that he did not study from this time until he enrolled in the B.BIS at AIH in November 2015 and claimed that he had been studying consistently since that time.

15. The Tribunal notes that, among the documents provided to the Department by the applicant in support of his application were a completion certificate for the Certificate IV dated 31 December 2012 and a Statement of Attendance for the Diploma dated June 2013, together with an academic transcript as at 19 August 2013 indicating that further results were required for him to complete this course. While the applicant stated several times at hearing that he had completed the Diploma of IT, no completion certificate was provided to support this claim. After the hearing, the applicant’s adviser submitted to the Tribunal the same Statement of Attendance that had been provide to the Department. In the absence of a certificate of completion, the Tribunal is not satisfied that the applicant, in fact, completed the Diploma of IT, as claimed, and has concerns about the applicant’s truthfulness in this regard.

16. The Tribunal’s concerns about the applicant’s truthfulness and credibility are compounded by his inconsistent evidence as to his employment in Australia. While he stated several times at his hearing that the only work he did since arriving in Australia was in a 711 shop, he provided to the Department a letter from a protective services company stating that he had been working for them for two years. When this inconsistency was brought to his attention, the applicant apologised and told the Tribunal that he worked at the company when he finished TAFE.  

17. The applicant was unable to explain why, if he had been studying the B.BIS continuously since November 2015, as he claimed, the COE he provided to the Tribunal was issued on 2 May 2017 and indicated a course start date of 2/5/2017.

18. Further, the applicant’s Provider Registration and International Student Management System (PRISMS) record indicated that his previous COE for this course had been cancelled on 22 December 2016 with the variation reason ‘no longer holding student visa’. The Tribunal drew this information to the applicant’s attention in accordance with s.359AA of the Act, noting that it might suggest that he had not been enrolled in a registered course of study between 22 November 2016 and 2 May 2017, but obtained a new COE for the purpose of his hearing. This information was relevant as it raised doubts about the truthfulness of his evidence. The applicant responded at hearing that he had no idea about this information as the college did not tell him that they cancelled his COE; and he had continued to attend classes and to pay fees every semester. He said he had evidence that he paid these fees but not with him and could provide it later. The applicant was granted additional time to comment or respond to the information.

19. On 8 May 2017, the applicant’s agent emailed to the Tribunal a submission in support of his claims, attaching a statutory declaration from the applicant in which he repeated his comments at hearing that the college had failed to inform him that they cancelled his COE in November 2015; that he had continued to attend classes and to pay fees. The applicant also stated that he received an email form AIH on 9 August 2016 advising him that his visa had been refused and they had to terminate his course, but he advised AIH that he would be appealing the visa refusal and intended to continue to study and was informed by AIH that he could do so. The applicant, as well as his agent, referred to an attached email exchange between him and AIH on this matter, though this was not provided. The applicant claimed that he only realised that he did not have a COE when his agent advised him to obtain one, which he did on 2/5/2017 and did not attach significance to this as he had been studying the whole time and paying his fees. Attached were 23 electronically issued invoices on the letterhead of the AIH, purportedly being in payment for tuition fees by the applicant for the B.BIS course, ranging in date from 18/03/2015 to 17/03/2017 (11 of them duplicates) and all bearing the issue date of 5/5/2017. 

20. The Tribunal has considered these submissions. The Tribunal notes that the invoices submitted as evidence that the applicant had been paying his fees for the period of his B.BIS course were all issued the day after the hearing 5 May 2017 (whereas the applicant told the Tribunal that he had this evidence but not with him t hearing); were duplicated in some instances; and several payment dates well preceded the applicant’s period of study of the B.BIS, which commenced on 23/11/2015. In the absence of an explanatory statement or a letter from the college attesting to the applicant’s version of the facts, which he could have obtained when he approached the college to have the invoices reissued on 5 May 2017, the Tribunal does not attach weight to this evidence.

21. Even if the Tribunal were to accept that the applicant continued studying and paying fees throughout the period, as discussed with applicant at hearing, it cannot overlook the fact that, since arriving in Australia in 2012, the applicant has only completed one full course – a Certificate IV in IT. At hearing, the applicant confirmed that he did not study or complete the principal course for which his original visa was granted under SVP arrangements – a Bachelor of IT at ACU; and had a gap in his studies of over a year between February 2014 and November  2015. This puts him in serious breach of Student visa conditions  8516 and 8202. 

22. While the applicant has claimed that he has completed more than 50% of his Bachelor degree, the academic transcript he provided to the Tribunal (paragraph 6 refers) indicates a poor study record. The Tribunal is not satisfied that the applicant’s poor record of academic achievement is consistent with the purpose of a Student visa to study a registered course and progress academically. 

23. Further, in light of inconsistencies in the applicant’s evidence regarding the completion of his Diploma of IT and the work he has been doing in Australia as discussed above, the Tribunal cannot disregard its concerns about the truthfulness and the general credibility of his evidence.

24. The Tribunal has noted the applicant’s expressed desire to complete his degree so as not to return to Pakistan ‘empty handed’. By his own evidence, however, the applicant has no concrete career plans, saying only that he would go home and look for a job as a systems analyst in business and that his friends told him he had to complete his degree first.  The Tribunal accepts that the applicant has ties to his family in Pakistan, although he also has a brother in Australia. It is not satisfied, however, that this presents a strong Incentive to return to Pakistan.

25. 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.573.223(1)(a).

26. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. 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.

    DECISION

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

    Mara Moustafine
    Member