WA (Migration)

[2017] AATA 2057

WA (Migration) [2017] AATA 2057 (24 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kingsley Yew WA

CASE NUMBER:  1606387

DIBP REFERENCE(S):  BCC2015/1351156

MEMBER:Mark Bishop

DATE24 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 24 October 2017 at 10:53am

CATCHWORDS
Migration – Student (Temporary) (Class TU) – Subclass 572 Vocational Education and Training Sector – No evidence of enrolment or completion of study – No overseas health cover

LEGISLATION
Migration Act 1958, s 65, 499
Migration Regulations 1994, Schedule 2 cl 572.223

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 applied to the Department of Immigration for the visa on 11 May 2015. The delegate decided to refuse to grant the visa on 15 April 2016. 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).

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 (1) (a) of Schedule 2 to the Regulations because the applicant did not satisfy the genuine temporary entrant criterion.

4. On 27 September the Tribunal wrote to the applicant advising details of a scheduled hearing date. The applicant did not respond to this notice. The applicant did not attend the hearing scheduled for 9.30am 24 October 2017.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

7. The issue in the present case is whether the applicant meets the time of decision criterion in cl.572.223. Clause 572.223(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)     …

8. 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.

9. 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.

10. A copy of the decision record was supplied to the Tribunal.

11. The Tribunal advised the applicant on 27 September 2017 of a hearing date set down for 9.30am 24 October 2017.

12. The applicant did not attend the hearing or contact the Tribunal in any way. The hearing did not proceed in the absence of the applicant.

13. The Tribunal had before it a copy of the statement of the applicant dated 17 May 2016. The applicant blamed his agent for his own failure to attend lectures and general instruction in his chosen courses. Further the applicant blamed his agent for cancellation of his Certificate of Enrolment and failure to change course enrolments on behalf of the applicant.

14. The Tribunal notes the primary responsibility for attendance at classes, change of enrolment and progress academically is that of the applicant. Agents may give advice and offer assistance to their clients.

15. The Tribunal notes the applicant entered Australia in December 2013 and has not left since that time. The applicants’ statement doesn’t make any reference to his family situation at home or incentives to return home. Further it does not make any reference as to how the applicant is funding or has funded his 4 year stay in Australia.

16. The decision record refers to an analysis by the delegate of the PRISMS record of the applicant. The delegate noted the applicant had concentrated in his first years in Australia on English language study. The Tribunal has analysed this material separately from any analysis by the delegate and made its own independent evaluation.

17. There was no evidence before the Tribunal that the applicant had enrolled in or completed any course of study after March 2015.

18. There was no evidence of overseas health cover after July 2017.

19. The applicant provided a statement on 22 July 2015. In that statement the applicant advised “…there was a company willing to employ me as a marketing officer. It is such a great opportunity…I sincerely hope I will be given a chance to continue studying the English language course…” The Tribunal has already noted there was no evidence the applicant continued his English language studies from March 2015 until the present time.

20. The Tribunal wrote to the applicant on 27 September 2017 requesting the applicant provide the following information: (1) A copy of a current Certificate of Enrolment (2) Documents that show the applicant is currently enrolled in a course or has an offer of enrolment (3) Documents that show past studies in Australia and (4) An explanation of any gaps in enrolments and relevant documentary evidence.

21. The applicant did not comply with this request. The applicant did not respond to this request for information.

22. The applicant did not provide a valid Certificate of Enrolment in an approved course after May 2016. The applicant did not provide any transcripts of courses studied, certificates of courses completed or letters from educational institutions relating to any period of enrolment.  

23. The Tribunal has had regard to the factors specified in Ministerial Direction Number 53.

24. The Tribunal has considered the immigration record of the applicant – arrived in Australia December 2013 and not departed since – and no evidence of family connection to his home country or incentive to leave Australia.

25. The Tribunal has considered the limited evidence available and gives weight to the applicant’s behaviour in Australia, his poor enrolment and graduation record and his statement of likely employment. Taken together it appears to the Tribunal the applicant is using the student visa program to circumvent permanent migration programs.

26. The Tribunal gives weight to the fact that after the rejection of his application for a student visa in April 2016 the applicant has not enrolled or concluded studies in any field. Not the sign of a genuine student seeking to study temporarily in Australia.

27. The Tribunal has had regard to the applicant’s circumstances in his home country but is unable to give this matter any weight at all because of the paucity of evidence.

28. 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.572.223(1)(a).

29. The Tribunal has found the applicant does not meet an essential requirement of cl.572.223. 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

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

    Mark Bishop
    Member