1421011 (Migration)

[2016] AATA 3130

1421011 (Migration) [2016] AATA 3130 (25 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr FAHAD MUHAMMAD

CASE NUMBER:  1421011

DIBP REFERENCE(S):  BCC2014/1168276

MEMBER:Don Lucas

DATE:25 January 2016

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 25 January 2016 at 6:10pm

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. Where used in this decision:

   a.COE refers to Certificate of Enrolment in a course of study;

   b.PRISMS refers to the Provider Registration and International Students Management System of the Department of Education and Training;

   c.VET refers to Vocational Education and Training;

   d.A reference such as ‘5Axxx’ refers to the referenced item or clause of Schedule 5A to the Regulations;

   e.The Department refers to the Department of Immigration and Border Protection;

   f.Direction 53 refers to Direction No.53, Assessing the genuine temporary entrant criterion for Student visa application; and

   g.IELTS refers to the International English Language Testing System;

   h.ELICOS stands for English Language Intensive Courses for Overseas Students.

3. The applicant applied to the Department of Immigration for the visa on 9 May 2014. The delegate decided to refuse to grant the visa on 3 December 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).

4. 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 delegate was not satisfied the applicant intended genuinely to stay in Australia temporarily.

5. The applicant appeared before the Tribunal on 25 January 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent.

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

   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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The delegate’s decision provided by the applicant with the application for review indicates that the applicant had been the holder of a student visa since late 2008, and following completion of an ELICOS course had by the time of the delegate’s decision only completed a Certificate III in Automotive Mechanical Technology. The delegate noted the applicant’s subsequent enrolments in business/management and IT, all in the VET sector and without evidence of successful completion. The delegate further noted a significant study gap of approximately 6 months in the first part of 2014.

13. The evidence before the Tribunal is that the applicant has now completed a Certificate IV in Automotive Mechanical Diagnostics on 31 August 2015 and is presently enrolled to complete a Diploma in Automotive Technology in four months’ time, at the end of May 2016.

14. The applicant provided evidence to the Tribunal consistently with written submissions provided prior to hearing, which stated:

    Circumstances in your home country and Australia:

    i.Background: Firstly, I came to Australia on 7 September 2008. I came here to study Diploma of Information Technology from Hales Institute, Melbourne Campus. After completing ELICOS from the Hales, I changed my course from Information Technology to Certificate Ill in Automotive in Mechanical Technology (Light Vehicle) and Diploma of Automotive from Austwide Institute of Management, I completed Certificate III from Austwide institute of Training. Than Instead of doing the Diploma, I decided to do the Certificate IV in Frontline Management from KAPS institute. studied there for 6 months, I was not happy with the Teachers. When I complaint to the management, however, they did not took any action. Teacher got angry and he failed me in his unit. I was very unhappy; I decided to change the college. I took admission in Advance Diploma of Management in Barkly College. However, I could not study at the Barkly College because I was stressed due to ill health of my grandmother. After that I enrolled in Certificate Ill in Automotive (electrical) and Advance Diploma of Business in Melbourne Institute of Training and Technology. Recently, I have completed Certificate IV in Automotive Mechanical Diagnosis from Acumen Education. Currently, I am studying Diploma of Automotive Technology.

    ii.Reason for studying the course: I am planning to start my own automotive workshop in my area. When I first came to Australia, my parents wanted me to become IT expert. However, my first job was at the automotive workshop. I worked there for 4-5 months before the workshop shut down. After working at the workshop, I enjoyed working with the cars and decided to either work in the workshop or open my own workshop. I changed my course from IT to Automotive. Currently, my plans are to finish my automotive studies before I fly back to Pakistan.

    iii.Reason for not studying in Pakistan: firstly Australian studies are recognised in the whole world. Secondly, teaching methods (especially for trade courses) are far better than they are in Pakistan. Thirdly, if you want to be a motor mechanic, the only way is to start working at the automotive shop for 4-5 years. During that time usually you are not paid at all or very little. Therefore, I decided to study in Australia

    iv.Family ties to your home country: I contend that after completing this course, I will return to Pakistan because of my family. I still have my mother and father in Pakistan.

    v.Economic circumstances: I belong to the middle class family and will inherit enough assets to survive and live comfortably. My grandfather and father will help financially in my business,

    vi.Civil Unrest: We live in the biggest city of Pakistan (Karachi) and it is very safe place to live. There is no civil unrest in our area.

    Value of the course to the Applicant's future:

    In Australia, I have completed the following trade courses:

    ·     Certificate III in Automotive Technology

    ·     Certificate IV in Automotive Diagnosis

    Firstly, I wanted to be an IT professional, However, after working on the automotive workshop, I decided to become motor mechanic. I believe I was misguided by my previous agent who advised me that if I want to open a workshop I must learn the business skills. Acting on his advice I tried enrolling and studying business courses. However, I keep failing and he keeps advising different courses, However, when I approach my current agents they guided me to enrol in the right automotive course. Since I am enrolled in this course I am studying sincerely and completing my course in time, I have already completed more than half of my course. My current course will finish on 30 May 2016 and after completing this course, I will return to Pakistan to start my own business.

    Student visa is not intended primarily for maintaining residence in Australia:

    I am not using student visa to maintain residence. I came here for study. Firstly, I wanted to become IT professional. However, I changed my course of study to become automotive mechanic. In the past, due to my agent advice, I enrolled in various business courses.
     However, was not able to complete any of them. I have wasted my money and time on those courses. I believe that if I could have advised before I could have done this course at first opportunity.

    I request the honourable member to consider my case and grant me the student visa for 6 months, so that I can complete my course and return to Pakistan for better future.

15. The evidence provided by the applicant at hearing was consistent with the written submissions, and generally, the Tribunal found the applicant at the hearing to be open and forthcoming with answers to questions.

16. The Tribunal acknowledges the concerns of the delegate in relation to the applicant’s study history. On balance however, the Tribunal is persuaded in relation to the applicant’s explanation in relation to his changes in course direction and lack of course progression. The Tribunal accepts that the applicant has demonstrated an apparent inclination towards and aptitude for trades courses in the automotive field, and may have been better off remaining in this area rather than attempting, apparently unsuccessfully, studies on the business and IT fields in the meantime.

17. Having particular regard to the proximity of the completion date of the applicant’s current VET sector automotive trade studies, the Tribunal is of the view that it would be unreasonable now to not allow the applicant to complete the current courses. Had he proposed any further courses beyond the current Diploma in Automotive Technology, the Tribunal’s view and conclusions may have weighed toward a different outcome of the review in view of the applicant’s study history. However, the Tribunal has accepted the applicant’s clearly stated evidence that he plans to return to Pakistan after completing the forthcoming Diploma at the end of May 2016.

18. For these reasons, despite some residual concerns, the Tribunal is of the view that the correct and preferable decision is to allow the applicant to complete the current course. The Tribunal’s finding is based on this view and would not be the same were there to be any proposed further studies beyond his current enrolment. 

19. Having had regard to all factors set out in the Ministerial Direction 53 that appear to be relevant to the applicant’s circumstances, and despite the Tribunal’s reservations noted above, the Tribunal finds on balance that for the purposes of the current enrolments the applicant is a genuine temporary entrant to stay in Australia as a student.

    CONCLUSIONS

20. 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 meets cl.572.223(1)(a).

21. 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

22. 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.

    Don Lucas
    Member