SYED (Migration)

[2017] AATA 2249

SYED (Migration) [2017] AATA 2249 (27 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MOHAMMED AHMED AL MADANI SYED

CASE NUMBER:  1613718

DIBP REFERENCE(S):  BCC2016/1731235

MEMBER:Jennifer Cripps Watts

DATE:27 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 27 October 2017 at 5:48pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Genuine student – Lack of evidence of enrolment – Unsatisfactory course progress

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 572.111, cl 572.223, Schedule 5A, Schedule 8, Condition 8202

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 on 8 August 2016 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 13 May 2016. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. In the present case, the delegate assessed the applicant against the criteria for a Subclass 572 visa on the basis of enrolment in An Advanced Diploma of Leadership and Management: 7F87D370. The visa was refused because the applicant did not provide the evidence required to demonstrate they were a genuine student as required by cl.572.223 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 27 October 2017 to give evidence and present arguments.  

5. The applicant was represented in relation to the review by his registered migration agent, Simran Baijal, Migration Agent Registration Number 0956723.  She did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. In the present case, at the time of this decision, the applicant is not enrolled in a course, nor has he provided an offer of enrolment in a course.  When he lodged his visa application for the subclass 572 student visa that is the subject of this review, on 15 May 2016, he was enrolled in an Advanced Diploma of Leadership and Management at George Brown College.  He said he thought he had enrolled in an accounting course, which is what he wanted to do.  However, in early August 2016, he says he discovered that he was not enrolled in Advanced Accounting, but in Leadership and Management, which was cancelled.

8. His student visa was refused on 8 August 2016 because he was not enrolled in, nor had he been offered a place in, a principal course of study that had been specified by Gazette Notice as a type of course for any other of the Student (Temporary) (Class TU) visa subclasses 570, 571, 573, 574, 575 and 576.  

9. His visa was refused on 8 August 2017.  The applicant lodged an application for review with this Tribunal on 29 August 2016, within time.  The matter was constituted to this member on 11 October 2017.  An invitation to attend a hearing was sent to the applicant.  He was advised that if he wished to provide material or written arguments that he should do so as soon as possible.  The applicant responded to the hearing invitation in writing on 16 October 2017, but did not provide any additional documentary information.  The applicant did not bring any additional documents with him to the hearing.

10. The issue in the present case is whether the applicant is a ‘genuine applicant for entry and stay as a student’ having regard to the prescribed matters. With the exception of the student guardian visa, this is a requirement for all student visas. For Subclass 572, this requirement is contained in cl.572.223, which is extracted in the attachment to this decision.

11. At the time of this decision, the applicant has not provided any evidence he is enrolled in a course or that he has an offer of enrolment.  The applicant provided the Tribunal with a copy of the Department’s decision to refuse his subclass 572 student visa and the reason for the refusal of his visa was discussed with him at the hearing.  He claims to have continued studying awaiting the outcome of the review by the Tribunal, but has provided no reliable evidence of any study he has undertaken since the time of application. 

12. The applicant said that before he applied for the student visa in May 2016, he tried to apply for bachelor level accounting courses at other colleges but that no other college would give him the bachelor course, so he applied for the Advanced Diploma of Accounting at George Brown College.  He says he applied on his phone, using Adobe software, and thought he was enrolled in accounting, but that when he attended the college to start classes he found out he was enrolled in Leadership and Management and was told the college did not offer accounting.  No documentary evidence was provided that supports this claim.

13. The requirements of cl.572.223 differ depending upon whether or not the applicant is, and was at the time of application, an ‘eligible vocational education and training student’ (eligible VET student) who has a confirmation of enrolment (COE) in each course of study for which they are such a student. ‘Eligible VET student’ is defined in cl.572.111 to mean an applicant for a Subclass 572 visa who is enrolled in a principal course of study for the award of an advanced diploma in the vocational education and training sector with an eligible education provider and, in some cases, an educational business partner. Eligible education providers, and educational business partners, are those specified by the Minister in an instrument.

14. On the evidence before the Tribunal, the applicant in this case was not at the time of application or has not at any time since then, and up to the time of this decision, been an eligible VET student with a corresponding COE and cl.572.223(1A) does not apply.

15. As such, to meet cl.572.223, the applicant must give evidence in accordance with the requirements set out in Schedule 5A to the Regulations for the highest assessment level for the applicant. Broadly speaking, these requirements relate to English language ability, financial capacity, and other prescribed matters, and differ depending upon the subclass sought and the applicant’s assessment level. Additionally, the Regulations require that the Minister is satisfied that: the applicant is a genuine student having regard to the stated intention to comply with the applicable visa conditions, and any other relevant matter; and that while the applicant holds the visa he or she will have access to the funds relied upon to satisfy the Schedule 5A financial capacity requirements.

    Is the applicant a genuine student having regard to intention to comply and other relevant matters?

16. In addition to meeting the Schedule 5A evidentiary requirements, the Tribunal must also be satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and any other relevant matter.

17. The applicant first arrived in Australia on 13 January 2010 holding a subclass 572 visa valid to 10 August 2011.  Since his arrival onshore he has held either student or associated bridging visas.  He completed a Diploma in Business in 2014.  This is the only course that the applicant has completed.  He said he still needs to do nine more units to finish his accounting course.  There was a variation to his Bachelor of Business course on compassionate or compelling grounds in November 2015.  He resumed the course, but said at the hearing he failed three out of three subjects and the enrolment was cancelled due to unsatisfactory course progress.  The applicant said the reason for this was because his studies were affected because of family problems he had to attend to back in India.  Movement records indicate he travelled back to India in September/October 2015.  It was a few months after he returned from India his enrolment was cancelled by the education provider.

18. The applicant has now been in Australia on a student visa or related bridging visa for nearly eight years.  His education provider reported him to the Department as not achieving satisfactory course progress.  The applicant, for this reason, had not complied with visa condition 8202.  He was asked by the Department to comment on this information, but did not respond.  At the time of this decision, the applicant sought to explain his unsatisfactory course progress by saying that he had family problems back in India which caused his studies to suffer.  There was no reliable evidence to support this claim and the Tribunal does not accept this as a satisfactory reason for his non-compliance with condition 8202.

19. The Tribunal has had regard to the matters set out in Ministerial Direction Number 53, including whether the applicant genuinely intends to stay in Australia temporarily having regard to his circumstances and immigration history and other relevant matters. The applicant says his highest education qualification before he came to Australia was an intermediate high school certificate.  The applicant has made poor academic progress in the nearly eight years he has been in Australia.  He is not currently enrolled in a course, nor has he provided the Tribunal with evidence that he has been offered enrolment.  He says he has nine more units to complete to receive his degree, but gave evidence that he has tried enrolling in bachelor courses without success.  

20. The applicant gave evidence that indicates he has family ties in India, that being his relationship with his mother, brother and sister who live in Hyderabad.  He said he visited twice this year, in 2017.  Once was for his own medical reasons and the other time to attend the funeral of his aunty.  He says his wish is to finish his accounting qualification, to become an accountant and run a business of his own.  He was asked how long he had planned to be in Australia when he came here and said he thought he would be a student here for three or four years at the most.

21. The Tribunal accepts that the applicant has travelled back to India on four occasions from 2010 to 2015 and then twice in 2017 and that he appears to have some ties to India. However, on balance, when the Tribunal has weighed up the applicant’s circumstances as a whole, and particularly given that he has not been able to find a college or university that will enrol him in accounting and currently has no offer of enrolment, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student within the terms of cl.572.223(2)(b).

22. At the end of the hearing the applicant was asked whether he was sure he had said everything he wanted to and had provided all the information he wished the Tribunal to consider.  He said he had and that he wanted to finish his studies.

23. For these reasons, the Tribunal finds that criteria for the grant of a Subclass 572 visa are not met.

24. As there is no evidence the applicant is eligible to be granted a student visa of another subclass, the decision under review must be affirmed.

    DECISION

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

    Jennifer Cripps Watts

    
    

    Member

    ATTACHMENT – Extracts from the Migration Regulations 1994

    572.223(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)the applicant meets the requirements of subclause (1A) or (2).

    (1A)If the applicant is, and was, at the time of application, an eligible vocational education and training student who has a confirmation of enrolment in each course of study for which the applicant is an eligible vocational education and training student:

    (a)the applicant gives the Minister evidence that the applicant has:

    (i)a level of English language proficiency that satisfies the applicant’s eligible education provider; and

    (ii)educational qualifications required by the eligible education provider; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have sufficient funds to meet:

    (i)the costs and expenses required to support the applicant during the proposed stay in Australia; and

    (ii)the costs and expenses required to support each member (if any) of the applicant’s family unit.

    (2)If subclause (1A) does not apply:

    (a)the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

    (b)the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

    (i)the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

    (ii)any other relevant matter; and

    (c)the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.