1420417 (Migration)

[2015] AATA 3799

1420417 (Migration) [2015] AATA 3799 (4 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MUHAMMAD KAZIM RAZA

CASE NUMBER:  1420417

DIBP REFERENCE(S):  CLF2014/91588

MEMBER:Mary-Ann Cooper

DATE:4 December 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 572 Vocational Education and Training Sector visa:

·cl.572.223(1)(a) of Schedule 2 to the Regulations.

Statement made on 04 December 2015 at 8:31am

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 30 June 2014. The delegate decided to refuse to grant the visa on 24 November 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.572.223(1)(a) of Schedule 2 to the Regulations because she was not satisfied that he was a genuine applicant for entry and stay as a student.

4. The applicant appeared before the Tribunal on 28 October 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

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

   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. Information about the applicant’s studies and visa history in Australia was noted in the delegate’s decision, a copy of which was submitted by the applicant to the Tribunal.  The applicant is a national of Pakistan.  He first arrived in Australia on a Subclass 572 student visa on 9 July 2009.  

11. The applicant has previously been enrolled in the following courses:

    ·General English

    ·Certificate II in Security Operations

    ·Certificate III in Electronics and Communications

    ·Certificate III, Certificate IV and a Diploma of Automotive Technology

    ·Certificate IV in Business

    ·Diploma of Management

    ·Advanced Diploma of Management

    ·Advanced Diploma of Business

12. Records demonstrate that since arriving in Australia he has completed his English course, and his automotive qualifications. Since filing this application documents provided to the tribunal confirm that he has completed his Certificate IV in Business and has completed 25% of his Advanced Diploma in Business, which he is due to complete on 1 August 2016. His original application provided Confirmations of Enrolment for a Certificate IV in Business, a Diploma of Management and an Advanced Diploma of Management however as discussed further below (paragraph 16), has completed Certificate IV in Business but has transferred from management to an Advanced Diploma in Business.

13. The delegate’s decision records that at the time the applicant made this application he had completed only one 96 week course in 5 years and considered that this was not a reasonable completion level. She also considered that the presence of the applicant’s brother in Australia was a strong incentive for him to remain.  Consequently the delegate was not satisfied that the applicant was genuinely intending to remain in Australia temporarily and refused the application

14. At the hearing the Tribunal queried the apparent gap in the applicant’s study from the completion of his Diploma of Automotive Management in 2012 until the current course load commenced in 2014. The applicant explained his lack of course progress. He told the Tribunal that his previous student visa application had been rejected because of delays with his medical evidence and he had applied for Tribunal review of that decision. He said while he was waiting for that review his education provider cancelled his study (a Diploma of Management) because he did not have a student visa. The Tribunal commented that the bridging visa the applicant was granted allowed for him to continue studying. The applicant maintained that he had not been allowed to do so. The Tribunal consulted the applicant’s PRISMS records available to it and noted the comment that the course was cancelled and the reasons listed is “no longer holding student visa”. While it seems that there may have been some mistake, the Tribunal accepts that this adequately explains the applicant’s lack of progress for some of the period he has been in Australia. He also told the Tribunal that he had wanted to enrol in a course that taught him about vehicle electronics and had enrolled in the Certificate III but had been misled as to its content (it was not about vehicles)  and had ceased studies.

15. The applicant said that before he came to Australia he had only completed year 12 and had  a few months employment in a travel agency. He claimed that he had always loved cars and had wanted to work on them and start his own business in Pakistan. He said there were no appropriate courses in Pakistan and that Australian education had a reputation as the best quality. Further, because his brother was in Australia, he therefore had someone with whom he could live when he arrived.  He provided the Tribunal with a reference from a limousine car company which confirmed that the applicant had been undertaking voluntary work with the company since October 2013. It listed his duties as managing the vehicles, dealing with customers, managing bookings and preparing maintenance check lists. The correspondence commended him as a reliable worker. He told the Tribunal that this experience would be very valuable to him on his return because this was the type of company he wished to start. He said there was a market for upscale chauffeur services and that with his technical knowledge and the business qualifications he anticipated he would be fully equipped to run the business. He gave details about his business plans and claimed his father fully supported him and would provide him with initial financing. The Tribunal later received sworn documentation from his father confirming that his son would be returning home following the completion of his Diploma and will start his own business in Jhelum and that he will assist him financially in this respect.

16. The Tribunal inquired why the applicant had commenced and ceased studies in management. He said that he felt he needed business skills more than management skills and the management course he commenced was not particularly helpful. He said he had sought out reputable providers and this had sometimes meant he had changed courses. In relation to his Certificate II in Security, he said he had undertaken this course so he could get a job in Australia but he had learned that this course would also be valuable to him when he starts his chauffeur/limousine business.

17. The Tribunal asked the applicant what he proposed to do at the completion of his Advanced Diploma in Business. He said he would not do any more courses and would return home. He said he only had 4 units remaining and was looking forward to returning home. In relation to his plans on doing so, he said he would buy two cars, do the driving himself and then, as business picked up, he would hire a driver. He said his cousin in Pakistan had a taxi business and he would help him with introductions to the business and with sourcing clients. When asked his expected remuneration, he said he had based his projections on his cousin’s business which he had run for 10 years and in which he earned 100,000 rupees per year. He said he hoped to earn more with the use of luxury cars. He said his father would finance the purchase of the cars.

18. The Tribunal asked about his family and his circumstances in Pakistan. He said his parents and some siblings lived in Pakistan but one sister lives in the USA, a brother in South Africa and his eldest brother in Australia. He said his family was financially comfortable and that his father provided a great deal of support to all his children. The Tribunal referred to the volatile political and security situation in Pakistan, particularly in north Pakistan around the location of the applicant’s family. He said the family was very secure, that the situation is not as bad as it used to be and that businesses are doing well.

19. In relation to his circumstances in Australia, he said he lived with his brother and sister-in-law in Melbourne, and their two children. He said he participated in local cricket and had friends in Australia.

20. The Tribunal referred to Direction 53 and outlined the required considerations, specifically, whether the applicant was using the student visa program to maintain ongoing residence in Australia. It observed that the applicant had undertaken a series of short inexpensive courses and had not progressed. The Tribunal said this indicated that the applicant may be using the student visa program to maintain or prolong his residency in Australia. The applicant acknowledged that he had wasted some of his time in Australia but claimed that he had always tried to undertake quality courses and had genuinely undertaken the business courses for the skills that would give him in starting his own business in Pakistan. He stressed that he only had 4 units to complete to be awarded his Advanced Diploma and that there would be a hugely adverse impact for him to return home without completing this course. He said he thought the course would give him a significant edge over other businesses in his area in Pakistan.

21. Overall the Tribunal found the applicant’s evidence frank and spontaneous and accepts it as credible. He provided thorough descriptions of his business plans and he has clearly thought through and followed a particular, consistent plan in relation to his course choices, some of which he discovered were not suitable. The Tribunal found the applicant’s explanations for his lack of progress plausible and they have some support in the documentation provided and as available to the Tribunal.

22. The Tribunal has considered whether the applicant intends genuinely to stay in Australia temporarily, having regard to the factors specified in Direction 53. The applicant’s circumstances in Australia, such as the presence of his brother and the friendship he says he has developed with the owner of the company in which he volunteers, tend to suggest he has strong motivation to remain. The Tribunal gives greater weight however to his consistent course of study, his considered business plans and his enthusiasm for that proposed business, and his firm statements that he does not wish to undertake any further courses in Australia. For these reasons, the Tribunal is satisfied that he is a genuine temporary entrant.

23. 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.572.223(1)(a).

    CONCLUSION

24. As the Tribunal has found the applicant meets the requirement of cl.572.223(1)(a), it will remit the matter to the delegate for reconsideration.

    DECISION

25. 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 572 Vocational Education and Training Sector visa:

    ·cl.572.223(1)(a) of Schedule 2 to the Regulations.

    Mary-Ann Cooper
    Member