Yussuf (Migration)

[2018] AATA 60

Yussuf (Migration) [2018] AATA 60 (16 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Folarin Sodiq Yussuf

CASE NUMBER:  1700083

DIBP REFERENCE(S):  BCC2016/1917092

MEMBER:David Barker

DATE:16 January 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 16 January 2018 at 2:07pm

CATCHWORDS

Migration – TU - Student (Temporary) (Class TU) visa – Subclass 572 (Vocational Education and Training Sector) – Attempted multiple courses – Completed Diploma of Information Technology Networking – No sound reason for changing courses – Aspiring to do social work in Nigeria – Family ties in Australia and Nigeria – Not a genuine temporary entrant

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 1 Item 1222 Schedule 2 cls 572.223, 572.223(1)(a)

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 1 June 2016. The delegate decided to refuse to grant the visa on 13 December 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 of Schedule 2 to the Regulations because they were not satisfied that the applicant intends to genuinely stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 14 November 2017 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 Nigerian national and is 22 years old. The Department delegate’s decision record, a copy of which was provided with the review application, states the applicant was granted an initial Student (Class TU subclass 572) visa offshore on 15 August 2014, which was valid until 1 June 2016. He subsequently arrived in Australia on 10 September 2014. In the current application, lodged on 1 June 2016, the applicant applied for a Student (Class TU subclass 572) visa. At that time, he was enrolled to undertake a Diploma of Community Services.

7. The delegate had regard to the Provider Registration and International Student Management System (PRISMS) which documented the applicant’s study history in Australia.  The PRISMS record indicated the applicant has been enrolled in and completed the following courses since his arrival in Australia:

   ·Diploma of Information Technology Networking - 2015/2016

8. The PRISMS record indicated the applicant was at the time of the delegates’ decision, in December 2016, studying a Certificate IV in Disability which was due to be completed in July 2017.

9. The PRISMS record indicated the applicant enrolled in the following courses since his arrival in Australia but the enrolment was subsequently cancelled:

   ·Diploma of Information Technology – 2014/2015

   • Diploma of Information Technology – 2014/2015
   • Diploma of Information Technology – 2014/2015
   • Advanced Diploma of Information Technology – 2015
   • Advanced Diploma of Information Technology – 2015
   • Advanced Diploma of Information Technology – 2015/2016

   ·Diploma of Community Services – 2016/2018

   • Advanced Diploma of Network Security – 2016/2017

10. On 11 July 2016, the applicant was invited to comment on his circumstances in relation to the genuine temporary entrant (GTE) criterion and to provide any supporting documentation.

11. The applicant responded to the invitation, with the Department receiving a response on 26 July 2016, which included evidence of his past academic studies and two certificate of Enrolments (COE) for his current and proposed study.  In a letter provided with this evidence the applicant told the delegate he wished to pursue a career in Community and Human Services, as he grew up in a community where social welfare is largely neglected. The applicant stated that while he had a passion for Information Technology, he had found that it was not his calling.

12. The delegate noted the applicant’s PRISMS recorded indicated that he has only completed a Diploma of Information Technology Networking since arriving in Australia and that it took him 26 months to complete a course that was initially due to take only 12 months. The delegate expressed concern the applicant had not provided sound reasons for changing courses and that his choice of courses did not show he was making academic progress in his studies, as the Certificate IV in Disability was at a lower academic level than his previous course and the proposed Diploma of Community Services was only at a similar level to his previous studies.

13. On 3 January 2017, the applicant provided the Tribunal with evidence regarding his past and current studies and academic progress, and a written submission from his migration agent;

14. On 20 October 2017, the Tribunal wrote to the applicant inviting him to attend a hearing on 14 November 2017.  That invitation among other matters, requested the applicant provide 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 572.223(1)(a) and asked him to provide a written statement addressing this issue by referring to Direction 53, which was attached.

15. On 8 November 2017, the Tribunal received documents from the applicant including evidence of his academic study in Australia and a written statement, dated 5 November 2017.  This written statement contained information that is consistent with the information contained in the written submissions from a migration agent, which were received by the Tribunal on 3 January 2017.  The applicant’s written statement states:

    1. My Name is [the applicant]. Date of Birth [supplied], Application ID: 1745591270, File Number: BCC2016/1917092,Case Number: 1700083

    2. I am currently a student at the Australian Academy of Management & Science. I was previously a student in Melbourne at Academies Australasia Polytechnic where I was studying Diploma in Information Technology.

    3. Due to some personal reasons, I subsequently transferred my admission from Melbourne to Sydney and I completed the Course (Diploma in Information Technology) at Pacific college of technology.

    4. I note that refusal of my application for student visa was based on a few reasons;

    i. That it has taken me twice the amount of time to complete my diploma course which has     questioned my intention to study and ability to progress academically 

    ii. That I did not provide enough reasons and evidences why I changed course from Information Technology to the current course of Community Services

    iii. The immigration decision officer also questioned my personal ties to Nigeria and that I might be using the student visa as a pathway to remain in Australia.

    My Application for the renewal of student was denied based on the above set of reasons. I will provide information below to clarify these reasons for refusal and I will also add additional evidence to support the review.

    5. I note that the decision officer made some inaccurate statements in respect to my admissions and transcripts – I was granted a student visa offshore on 15 August 2014 and I arrived in Australia on 10 September 2014. At the time I arrived, two of the courses that appear on the Provider Registration and International Student Management System (PRISMS) had already taken place. My student visa application took some time before it was approved so I did not attend or attempt the subjects/courses as I was not present in Australia at that point. The decision from the Department seems to have added those subjects and from the dates, it is clear that my visa was not approved at those periods in 2014.

    6. The decision officer also stated that I have spent 26 months for a 12 months program, this statement is in fact incorrect. I have attached my academic transcript and release letter which will show that I did other courses within the time frame that I completed and was passed as competent.

    7. There is a fundamental reason why I found it challenging in the first few exams I attempted after arriving in Australia September 2014. The Diploma of Information Technology was a bit advanced from my basic knowledge of the course and while I was working hard to improve on my marks, there was lack of support either from family or from the school. It was my first travel outside my family and I felt isolated. This had a severe impact on my focus and I just could not handle being away from home and my family. Consequently, I was not competent in the first few courses and it shows cancelled on PRISMS but the right term should have been ‘incompetent’. I did not cancel these courses, I attend classes, I participated in the class work but I failed the exams. In my transcripts, what is scripted is not “cancelled” but it is showing as “not competent” and I assert that I did pass some other subjects under the diploma course.

    8.  As I progressed in the school in Melbourne, I appreciated that there were some distant relatives of mine in Sydney and I had explained to them my situation. I was encouraged to make the switch to Sydney and I believed at that point, that such support from similar tribal friends can allow me to remain focus which will eventually help with my grades.

    9. I discussed this with the school in Melbourne and I was advised that the switch cannot happen until a certain time in the future. Since I was only 6 months into the program, I was informed that the transfer can only be permitted after 9 months and that I would need to wait till the end of the second semester. This did not encourage my marks even if I was determined to improve my understanding of the course as I was focused on the transfer.

    10. Subsequently, my transfer to Sydney was approved; I was still admitted in the same programme at the Pacific College of Technology. I resumed the course on 15 July 2015 and completed the diploma in Information Technology Networking program. I passed the diploma and my understanding of the different subjects within the program had improved and developed. I am now very competent in particular areas in Information Technology.

    11. I was supposed to move onto the advance program on completion of the diploma but I recognised that my future was not in the technology world. In my previous statement to the Department of Immigration, I was not clear about the term I used. I had stated that the course was “not my calling” and I accept this was vague but I actually meant that, my career prospects had changed.

    12. My passion for humanity is very well documented. I have volunteered in Nigeria with my parents and also with local organisations in assisting the needy, helping the poor, supporting the sick and this part of my life comes naturally.

    13. In Nigeria, community services however offer opportunity to start up one’s Ngo. in Australia, community issues are very important and I have embraced this field of expertise. Hence, my change of career prospects was based on the need to do what I enjoy best, the need to support mankind, the believe of justice and equality, the compassion of fellow humans - these were the set of factors that allowed me to make a change because it is a dream to do what I enjoy while also getting an income and positioning myself for a benefiting future.

    14. Presently, I have resumed the Community Services course and I am enjoying every bit of the program. The Australian Academy of Management and Science has provided me with the platform to study and gain practical experience. I am convinced that working in the community services sector can broaden my knowledge in humanity and hopefully, I can work in international organisations such as the UN. This will be a dream come true and I am optimistic it can be possible if I am granted an opportunity to study the course. I’ve also completed and passed all my entire unit for the certificate IV and I can’t wait to finalise the work placement for both courses at the end of my diploma. I’m also seeking a part time employment as a community support worker.

    15. The notion that I have travelled from Nigeria to Australia that my intention was to use the student visa as a path to live here permanently is just not true. I am surprised at such assumption by the decision officer. If you look at the facts I have presented, the study of Information Technology actually leads me to a permanent resident but that was never the motive.

    16. The main reason I came to Australia was for study purposes and that is currently the case. My immediate family sent me here to acquire an education, so I can improve my skills and hopefully, that such exposure can help me in the near future to be stable as a man. This continuing education allows me to give back to my community as well.

    17. The decision officer also raised some points about my ties in Nigeria, that I am not married and hence there is nothing that ties me to Nigeria. I refuse this line of thought, it is inaccurate and it is lacking the relevant consideration that applies to my person and integrity.

    18. I arrived here as a 19 year old and am only 22. In my culture, I am not even supposed to be talking about marriage even so getting married. I am the first son of my parents and in my culture; I have full time responsibilities for my immediate and extended family. This is another reason why my parents sent me here for studies to make me stronger and more capable for the future. It will be extremely difficult for my entire family if I am now forced to return back to Nigeria as I have not delivered in my primary purpose of coming to Australia.

    19.I respectfully request for the review member to note that I have so far respect and maintained my previous visas, I have always paid my fees and if I am granted a visa to continue my course, I will eventually respect this visa conditions.

    20.I am appealing for a review because I believe that my situation is unfortunate and unplanned, it is caused by events outside my control and it has really been frustrating for me; this has caused me anxiety as my health has depreciated due to this refusal as I was not expecting this negative decision. The facts I have provided about my situation can and is easily variable. My current course is currently going smooth, I have met all my financial responsibilities and if I am granted a chance to continue my studies, I will meet with all the obligations.

    21. I am requesting in good faith, that your good office show considerations towards my review and to grant me leniency so my visa can be approved which will allow me to continue my education.

    I hope that consideration can be shown because I am working hard to close the gap on the lost time and I would be very happy if I am granted a fair hearing.

16. The Tribunal gave the applicant time after the hearing to provide further documentary evidence and submissions for the Tribunal to consider before a decision is made in this matter.

17. On 21 November 2017, the Tribunal received further documentary evidence from the applicant, including: a written statement from the applicant, dated 21 November 2017, bank and other financial records and evidence of progress in the course he is currently undertaking in a Certificate IV in Disability.  The written statement from the applicant stated:

    I have provided my bank statement for 2017 and my academic transcript as requested by member David Barker on the day of my hearing. I also included a western union transfer receipt and communication history snapshot on how my parents have sent me money from Nigeria. Both transfers can be verified in my bank account with the date of 28 March 2018 and 03 November 2017.  However due to the difficulty in transferring to me sometimes directly i occasionally ask my education agent that’s based in Nigeria, Kenya and Australia to assist me by allowing my sponsor to deposit the money to their bank account in Nigeria and they give me the equivalent in cash in Australia.  My transcript also show pending for most subject because they’re affiliated with the work placement once the work placement is finalized I will be awarded a competency for them but I have completed the theory and classroom aspect for them which can be confirmed with my Education provider. Thanks for granting me a fair hearing.

    The hearing

18. The Tribunal raised with the applicant that the matter before it is whether he meets the requirements of cl.572.223(1)(a). It outlined the section, the relevance of Direction 53 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for entry and stay as student.

19. In relation to his education in Nigeria, the applicant stated he finished the equivalent of Year 12.  In relation to his families’ circumstances in Nigeria, the applicant said both of his parents are alive and that his father works for the fire brigade.  He said he has two sisters and two brothers, who also reside in Nigeria.  He said he has no family in Australia, but that he has been in a relationship for the past six months with a woman from New Zealand, who he has met whilst he has been in Australia.

20. In relation to his current study, the applicant said he commenced a Certificate IV in Disability in July 2016.  He said that because he has not completed work placements associated with this course, he has not been issued a Certificate, but that he has completed the study associated with this course and recently commenced studying in the Diploma of Community Services course.  He said the education provider recommended he do the Certificate IV in Disability before he attempted the Diploma of Community Services.  He said he has studied throughout 2017, with no breaks. 

21. The applicant said that when he has completed the Diploma of Community Services in 2019 he would like to undertake a bachelor of social work degree in Australia.  He said he would then return to Nigeria.  He said if he does not proceed to study a social work degree in Australia, he will return to Nigeria.   He said his father has a position within the fire brigade in Nigeria and could help him set up a business providing employee assistance to employees of the fire brigade.  He said he also has an interest in getting involved in politics in Nigeria and is also interested in working with education services and non-government agencies in Nigeria.

22. The Tribunal discussed with the applicant the courses he has undertaken in Australia and what he has successfully completed.  This was consistent with what is outlined in an earlier section of this decision.

23. The Tribunal asked the applicant whether he had departed Australia since his initial arrival in 2014 and he indicated he had not.

24. The applicant told the Tribunal that when he came to study information technology in Australia he wanted to improve his skills in this vocational area, as he has a passion for computers.  He said there were no equivalent information technology courses in Nigeria.  He said he wanted to acquire these skills, as they would have provided him the opportunity to get a good job in Nigeria and also the skills to assist his elder sister in her business in Nigeria.  He said that once he studied information technology in Australia, he realised he wanted to do something that changed people’s lives directly.  He said he lost interest in information technology and did not wish to restrict himself to studying in a vocational area where he may not wish to work in over the longer term.

1. The applicant gave evidence he lives in a share household in Rooty Hill, NSW and works on a part time basis in a coffee shop, earning a nett weekly income of around $500.  He said he also receives around $2,000 from his family in Nigeria every few months.

2. The applicant said he has no military commitments in Nigeria, nor fears to return because of civil or political unrest there.

3. In relation to why he is studying in Australia and not his own country, the applicant said that there are more opportunities in Australia, the study here is flexible and good for his language skills.

4. The Tribunal raised with the applicant that they he has been in Australia since 2014 without returning to Nigeria and that this may indicate he has stronger ties to Australia than Nigeria. The Tribunal put to the applicant he has only completed two courses whilst he has been in Australia and his study history did not show significant academic progress or a clear connection between the courses he has undertaken.  The Tribunal raised the concern with the applicant that he is using the student visa program to maintain his residency in Australia. In response to these concerns, the applicant said he still has an interest in information technology and can still use the information technology qualifications he has acquired in Australia to get work when he returns to Nigeria.  He said he has a dream to get involved in politics in Nigeria and also could establish a business providing employee support services to government workers in Nigeria.

   Information put to the applicant pursuant to s.359AA of the Act

5. The Tribunal put information to the applicant, pursuant to s.359AA of the Act, first explaining to him that the Tribunal is required to invite him to comment on or respond to certain information which the Tribunal considers would, subject to his comment or response, be the reason, or part of the reason for affirming the decision under review. The Tribunal explained to the applicant it would invite him to orally comment on or respond to the information and that he could seek additional time to comment on or respond to the information.

6. The particulars of the information put to the applicant was that he enrolled in a Diploma of Community Services, which was to run from 11 July 2017 to 31 October 2018, but his enrolment was subsequently cancelled on 27 September 2017 due to non-commencement of studies. The Tribunal explained to the applicant that this information is relevant because it appears to indicate he had not undertaken studies in the period from 11 July 2017 to 6 November 2017, which in combination with other gaps in his studies, the cancellation of other courses and concern regarding the relevance of his current studies to his previous studies, raises concern as to whether he is using student visas to maintain his residency in Australia.   The Tribunal told the applicant that if it finds he does not intend to genuinely remain in Australia temporarily it will affirm the decision to refuse the Student visa.

7. The applicant told the Tribunal he did not wish further time to consider his response and proceeded to tell the Tribunal that when he has finished his Certificate IV in Disability, he will proceed to study the Diploma of Community Services.  He said he does not know why his COE was cancelled, as the education provider gave him the opportunity to catch up in subjects in the Certificate IV course.    The applicant said he was worried that if he had continued to study in the course until October 2018, he would not have had the opportunity to complete the work placement requirements involved in the course.  He said he intends to do the work placements after he has completed the Diploma.  He said there was no period during 2017 that he has not been actively undertaking studies

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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)     …

10. 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.

11. 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. In making the decision the Tribunal has considered all the evidence before the Tribunal with regard to the applicant’s circumstances and immigration history, and all matters as outlined in Direction No. 53 and any other matters it considers relevant.

12. Having considered the applicant’s claims against all the factors specified in Direction 53, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

13. The applicant contends he wished to study information technology in Australia, as equivalent vocational courses were not available in Nigeria.  He explained it would have been possible for him to study computer science in Nigeria, but this would not have provided him with the sort of skills he wanted to acquire.  The Tribunal accepts this is a reasonable explanation for his initial study choices in Australia.  The applicant gave no evidence in relation to steps he had taken to see if he could study community services, disability studies or related courses in the community services sector in his home country.  The Tribunal has placed weight on  the applicant’s lack of apparent research into the option of studying this sort of course in his home country and considers this to not support a contention he has strong ties to his home country.

14. The Tribunal accepts the applicant is the first born son in his immediate family and that he has both parents and an elder sister residing in Nigeria.  The Tribunal accepts this provides him with an incentive to return to his home country at some stage.  The Tribunal has however noted inconsistency in the applicant’s evidence in relation to whether he has relatives in Australia, as during the hearing he said he had no family or relatives in Australia, whilst in his written statement, dated 5 November 2017, he states his decision to disrupt his studies and relocate from Melbourne to Sydney was influenced by his having relatives, albeit distant relatives in Sydney.  The Tribunal has preferred the information in the applicant’s written statement and therefore considers he has a social support network in Sydney, consisting of relatives, which provide him with some incentive to remain in Australia.

15. The Tribunal has considered the applicant’s evidence that the information technology skills he has already acquired from his study in Australia equip him to seek work in Nigeria and to assist his elder sister in her business.  The Tribunal accepts this provides him with an incentive to return to his home country.  In light of this finding the Tribunal has concern as to why the applicant has not taken the opportunity to return to Nigeria to either assist his elder sister in her business, or to seek paid employment as a skilled information technology worker.  The Tribunal has noted the applicant’s indication he has changed his vocational orientation, but is mindful of the purpose of the Student visa program, which is to assist people to acquire qualifications and skills that improve their employment and general life prospects in their home country.

16. The Tribunal notes the applicant has part time employment in a café in Sydney, providing him with a weekly nett income of around $500.  The Tribunal also notes the applicant aspires to work in the disability sector whilst he continues his studies in Australia.  The Tribunal accepts he would be apportioning a considerable amount of his income towards his living expenses.  However, the Tribunal is satisfied the economic circumstances in Nigeria, relative to his current economic circumstances in Australia, do not provide the applicant with a strong incentive to return to his home country.

17. The Tribunal accepts the applicant does not have military service commitments that would present as a significant incentive for the applicant not to return to his home country.

18. The Tribunal accepts the applicant does not hold concerns in relation to political and civil unrest in Nigeria, which have provided him with a motivation to apply for a Student visa as means of obtaining entry to Australia for the purpose of remaining indefinitely.

19. The Tribunal has reviewed the applicant’s study history in Australia and accepts his explanation for some of the initial courses cancellations.

20. The Tribunal has noted the applicant’s explanation for studying in the community and disability services sector.  He contends he wishes to work directly with people and that he has a history of voluntary work in his home country.  He also describes a variety of goals for his future, ranging from involvement in politics in his home country, establishing his own employee assistance business and working with non government organisations (NGO’s) or the United Nations.  Whilst accepting a person may change their career aspirations, the Tribunal has concerns in relation to the applicant’s claims in relation to this particular issue.  The applicant has provided no documentary evidence to corroborate his claims in relation to his past involvement in voluntary and charitable work in his home country.  His past interests have been focussed on computers and information technology.  From this perspective, there appears little connection between the applicant ’s past studies and interests and the current course he is undertaking in Australia. 

21. In the view of the Tribunal, the applicant has also expressed unrealistic goals for the sort of career and future qualifications in the disability and community sector at the Certificate and Diploma level will equip him for.  The Tribunal has concern the courses the applicant has recently undertaken and is undertaking at the present time do not show that he has made any substantial academic progress whilst he has been in Australia. 

22. In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including that the applicant is currently enrolled in a Diploma of Community Services, which commenced in November 2017 and runs till December 2018 and that he wishes to then undertake a social work degree, which would require at least a further four years in Australia. The Tribunal accepts the applicant has family ties in Nigeria, but considers he also has ties to relatives in Australia. The Tribunal noted the applicant has successfully completed two of the courses he has enrolled in, but has failed to complete a number of other the courses he has enrolled in whilst in Australia and that he took longer than would usually be the case to complete his initial Diploma of Information Technology. The Tribunal has considered all the other matters the applicant has raised.  However, for the reasons outlined above the Tribunal does not accept the applicant is undertaking the current study for the reasons he claims, but rather using it as a pathway to maintain residence in Australia.

23. The Tribunal is therefore not satisfied that the applicant is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

24. 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 53, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

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.572.223(1)(a).

26. 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

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

    David Barker
    Member