1418278 (Migration)

[2015] AATA 3035

1418278 (Migration) [2015] AATA 3035 (7 July 2015)

DECISION RECORD

APPLICANT:  Mr Yasir Ayaz

CASE NUMBER:  1418278

DIBP REFERENCE(S):  BCC2014/2132404

TRIBUNAL MEMBER:  Stuart Webb

DATE:7 July 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

·cl.573.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 07 July 2015 at 4:39pm

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 28 August 2014. The delegate decided to refuse to grant the visa on 24 October 2014. 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.573.223(1)(a) of Schedule 2 to the Regulations because the applicant arrived in Australia on a 573 visa to undertake a Masters degree in Professional Accounting to commence in January 2013. His first enrolment was cancelled after the applicant sought to defer his intake. A new enrolment was sought in the same course to commence on 5 August 2013. The applicant arrived in Australia on 19 May 2013. On 17 July 2013 this enrolment was cancelled as the applicant transferred to a new provider. On 25 July 2013 the applicant was issued a new CoE in a Masters of Accounting course commencing on 25 July 2013. On 31 March 2014 the enrolment was cancelled because the applicant did not re-enrol by the last date to enrol, and the last date of study was recorded as 30 November 2013. The applicant enrolled in a Diploma of Business from 20 January 2014 but was cancelled on 20 March 2014 for non-commencement of studies. On 14 March 2014 a new CoE was issued in a Master of Commerce commencing 24 March 2014. On 4 August 2014 the CoE was cancelled as the applicant failed to re-enrol in Trimester 2 2014. The delegate then noted that the applicant was proposing to undertake a further 3 years and 7 months of study in a Cert III and Cert IV in Commercial Cookery, a Diploma of Hospitality and a Bachelor of Business.

4. The Delegate noted that the applicant had not completed any of his previous courses. The delegate noted that the applicant had completed a Bachelor of Business Administration (Honours) in Pakistan, and his original study pathway would lead to increased remuneration and career prospects. The delegate was not satisfied that the present circumstances would lead to increased his remuneration or career prospects in Pakistan on return.  The delegate was concerned by the repeated cancellation of enrolments.

5. The applicant appeared before the Tribunal on 1 June 2015 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent. The applicant provided the Tribunal with a copy of the delegate’s decision.

6. For the following reasons, the Tribunal has concluded that the [the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. 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)…

9. 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.

10. 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.

11. The applicant and his agent provided the following information to the Tribunal.

    I, Yasir Ayaz am providing this letter to illustrate my genuine intention and desire to pursue hospitality and business studies In Australia.

    I first-arrived in Australia on 19th May 2013 with the Intention of studying a Master of Professional Accounting through the University of Canberra, Given I didn't arrive Australia until 2+ months after my student Visa was granted, I deferred my studies until the next semester. My first 2 months in Canberra were tough. I had no family or friends and felt isolated and lonely. I therefore, after speaking to my family, chose to move and pursue my Studies in Melbourne where several of my friends resided.

    I enrolled in a Master of Accounting (Professional Practice) in July 2013 through Charles Darwin University in Melbourne. During my first semester of studies I struggled to understand the course content/structure. This coupled with the environment, which was nothing like what I was used to in my home country, caused me to cease my studies at Charles Darwin University. As a result, my CoE was cancelled in March 2014.

    Wanting and needing to further study in order to better my career I enrolled in a Diploma of Business through South Pacific Institute. After being misled by friends I came to realise that studying this course would violate the conditions of my current student visa. I therefore did not commence studying this course and upon recommendation from a trusted friend enrolled in a Master of Commerce (Professional Accounting) through Federation University Australia.

    I chose this course as it was related to my already partially completed Australian studies and I was hopeful that the change in education provider and the way the course was delivered would ensure I gained a better understanding of the course content. As per the provided materials, I completed 1 semester of studies at Federation University. During the semester it became apparent that the content associated with the Master degree was just too difficult for me to grasp. I therefore had no choice but to re-evaluate my future plans and upon consultation with my family decided to pursue studies in hospitality and business.

    My father has advised that he will financially support me in my endeavours to open, run and manage a restaurant in my home country once I have successfully completed my hospitality and business studies in Australia. With this knowledge I enrolled in a Certificate III, Certificate IV, Diploma of Hospitality and Bachelor of Business in August 2014.

    I am currently studying a Certificate III in Commercial Cookery and am expected to complete this course in the coming months,

    I acknowledge that I initially came to Australia with the intention of completing a Master's degree in accounting however due to unforeseen circumstances/factors I was unable to complete this course. I wasn't aware of how difficult the curriculum would be and struggled to grasp the concepts required in order to master this skill. I therefore had no choice but to pursue a different course. I note that I gave it my best shot to complete my accounting studies. Despite my initial inability to grasp concepts I tried to further pursue the course at a different institute in the hope that their teaching methods would be different. Sadly this was not the case. This inevitably forced me to change careers and therefore requires that I undertake further studies in my now new desired field. I conform I am a genuine temporary entrant and without the completion of my currently enrolled course I will be unable to effectively run, operate and manage my own restaurant.

    I am hopeful that the above statement has been able to effectively clarify my reasons and desire to pursue further studies in hospitality and business in Australia.

12. The agent’s submission stated:

    Mr Ayaz arrived in Australia on 19^th May 2013 with the intention of studying a Master of Professional Accounting through the University of Canberra — CoE attached. This CoE was issued with a course commencement date of January 2013.

    Given the applicant did not receive advice as to the grant of his student visa until
    after the initial course commencement date the applicant was forced defer his studies
    until the following semester. This CoE had a course commencement date of 05 August - CoE attached.

    The applicant arrived in Canberra in May 2013 and found the area to be isolated and isolating. The applicant had no friends in the area and as he was yet to commence his studies he spoke to family in Pakistan and friends in Melbourne and then decided that it would be best for his health and future if he commenced his studies in Melbourne. Therefore the CoE from University of Canberra was cancelled in July 2013 as the applicant advised the education provider that he was transferring to undertake studies with Charles Darwin University.

    Mr Ayaz enrolled in a Master of Accounting (Professional Practice) in July 2013 through Charles Darwin University— CoE attached. As per the attached, Mr Ayaz completed 1 semester of studies at Charles Darwin University where he passed 2 units and was given the opportunity to sit deferred examinations in the other 2 units.

    Mr Ayaz struggled greatly with the course content, academic rigour and challenges of his Master of Accounting studies. Due to these difficulties Mr Ayaz felt he would perform better with his Australian studies if he transitioned from a more manageable level of education through to post graduate studies.

    Therefore Mr Ayaz decided to cease his studies at Charles Darwin University and enrol in a Diploma of Business through South Pacific Institute. Mr Ayaz enrolled in this Diploma level course in January 2014 and advised Charles Darwin of his cessation of studies at their institute and his CoE with Charles Darwin was therefore cancelled. Mr Ayaz was subsequently made aware of the fact that as a subclass 573 visa holder he was not able to study the Diploma level course and he immediately sought to rectify this situation by enrolling in a Master of Commerce (Professional Accounting) through Federation University Australia in March 2014.

    Mr Ayaz chose this course as it was related to his already partially completed Australian studies and he was hopeful that the change in education provider and the way the course was delivered would ensure he gained a better understanding of the course content. As per the attached, Mr Ayaz completed one semester of studies at Federation University. During the semester of his studies at Federation University Mr Ayaz found that despite a new environment he was still unable to adequately grasp the complexity of the course content. Due to his inability to perform at the required level in his Master Degree studies Mr Ayaz was forced to come to the conclusion that he needed to re-evaluate his future plans and perhaps consider pursuing a different career path.

    Mr Ayaz finished his semester of studies at Federation University on 28^th June 2014 and was unable to perform at the required academic level.

    After much consideration and consultation with his family, Mr Ayaz decided to pursue studies in Hospitality and Business. Mr Ayaz has advised that his father has the funds and has agreed to open a restaurant in his home country in which Mr Ayaz can run and manage upon the completion of his Australia studies. Mr Ayaz enrolled in and applied for a new student visa in August 2014 to complete a Certificate III, Certificate IV, Diploma of Hospitality and Bachelor of Business through Imperial and Stott's College — CoE's attached. Mr Ayaz is expected to complete the first of his 4 desired courses in the coming months.

    Mr Ayaz came to Australia with the full intention of completing a Master's Degree in Accounting. He held a BBA degree with Honours from Pakistan and felt that proceeding to a Master Degree Level program would be appropriate. Unfortunately, the difficult nature of the course content meant that despite concerted attempts at two different education providers he was unable to complete this course.

    Mr Ayaz's inability to adequately grasp advanced accounting concepts and principles forced
    him to consider a career change and a more appropriate level of study. Mr Ayaz did not simply give up on his initial study plans and changed education providers in the hope that he could complete his studies in Accounting. Mr Ayaz went to great lengths to try to complete his Accounting studies and despite his initial and natural disappointment at his inability to perform at the required level in his Accounting studies Mr Ayaz is now excited about his new career in the Hospitality industry. He is thriving in his current academic environment and the knowledge that he can use the skills learnt from both his Australian and overseas studies to open, run and manage his own restaurant in his home country has given him a renewed confidence.

    As evidenced in the above / attached CoE's there have been no unacceptable gaps in the applicant's Australian studies. Mr Ayaz arrived in Australia as a genuine student and continues to be a genuine temporary entrant seeking to complete Australian studies at a level appropriate to him. Mr Ayaz now has a better appreciation as to why Australian qualifications are highly regarded in his home country and he is confident that on completion of his planned study pattern he will return to Pakistan with a skills set which will result in a better life for him in Pakistan.

    We attach the following materials for your reference:

    1.Applicant's signed statement

    2.Applicant's CoE's for all currently and previously enrolled courses of study in Australia

    3.Transcript confirming applicant's partial completion of Master of Accounting (Professional Practice) through Charles Darwin University

    4.Transcript confirming applicant's partial completion of Master of Commerce (Professional Accounting) through Federation University Australia

    5.Transcript confirming applicant's current enrolment in Certificate III in Commercial Cookery through Imperial College

    6.Certified copy of applicant's passport

    7.Certified copy of applicant's birth certificate

    8.Certified copy of applicant's ID card

    9.Certified copy of applicant's overseas qualification materials

    10.Certified copy of applicant's secondary school certificates

    11.Certified copy of applicant's IELTS test report

13. The Tribunal has considered the evidence before it with respect to the applicant’s circumstances. The Tribunal notes that the applicant has changed his study plans in Australia, and is now embarking on studies that would eventually lead to a Bachelor of Business course. While the Tribunal has some reservations with respect to the applicant’s proposed study, including the necessity of the Cert IV course in Commercial Cooking when he is actually proposing to do a higher degree course, the Tribunal accepts on the evidence before it that the applicant is a genuine student.

14. Having determined that the applicant is a genuine student, and reflecting on the guidelines of Direction 53, the Tribunal considers that the applicant has explained his change of study plan and provided reasons as to why he would return to Pakistan at the end of his present studies. The Tribunal accepts this explanation.

15. On the basis of the above, and having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does meet cl.573.223(1)(a).

16. As the Tribunal has found the applicant meets the requirement of cl.573.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

17. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 573 Higher Education Sector visa:

    ·cl.573.223(1)(a) of Schedule 2 to the Regulations.

    Stuart Webb
    Member