1506106 (Migration)

[2016] AATA 4357

1506106 (Migration) [2016] AATA 4357 (1 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Ahmad Shoukat

CASE NUMBER:  1506106

DIBP REFERENCE(S):  BCC2015/591340

MEMBER:Adrian Ho

DATE:1 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 01 September 2016 at 3:28pm

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.The applicant refers to the first-named applicant;

   b.COE refers to Certificate of Enrolment;

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

   d.VET refers to Vocational Education and Training;

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

   f.Direction 53 or the Direction refer 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.

3. The applicant applied to the Department of Immigration for the visa on 23 February 2015. The delegate decided to refuse to grant the visa on 17 April 2015. 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.

5. The applicant appeared before the Tribunal on 2 August 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 decision under review should be affirmed.

   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.

   Subclass 580

9. At hearing, the applicant was informed that the Subclass 580 visa is for student guardians; where it is a requirement that the person will accompany a relative to or in Australia who is a student, and in order to make a valid application for a Subclass 580 visa Form 157G had to be used (Item 1222(1)(ca) of Schedule 1) and on the evidence it was not and therefore it appeared the application was not a valid application for a Subclass 580 visa.

10. The applicant confirmed that Form 157G was not used and a Subclass 580 visa was not sought, and was informed that the application appeared not to be a valid application for that subclass in any event, and the tribunal so finds.

11. For the remainder of this decision, a reference to subclasses or all subclasses of the Class TU visa does not include a reference to Subclass 580.

    Genuine Temporary Entrant

12. A major 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)     …

13. 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.

14. 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.

15. At hearing, the applicant was:

    a.Given a summary of the mandatory criterion that the applicant is a genuine applicant for entry and stay as a student as required by the Regulations;

    b.Informed that a major issue on review was whether the applicant was a genuine applicant for entry and stay as a student because the applicant intends genuinely to stay in Australia temporarily having regard to the applicant’s circumstances and immigration history, the considerations laid out in Direction No.53 as relevant to the applicant, and any other relevant matter;

    c.Informed that the criterion has as its focus an examination of the intentions of the applicant: whether they are for stay as a student, whether they are genuine, and where they are for a temporary stay in Australia;

    d.Given an overview of the considerations laid out in Direction No.53 as summarised above;

    e.Informed that a complete copy of Direction No.53 had been provided to the applicant along with the invitation to the tribunal hearing;

    f.Informed that all subclasses of the Class TU visa have equivalent ‘genuineness’ criteria, and that if the criterion was not met, it would likely not be met for each of those subclasses.

16. The tribunal then had a discussion with the applicant regarding the issue which focused on the considerations laid out in Direction 53.

    Findings

17. The applicant gave evidence that he arrived in Australia in 2013 on a 573 student visa having proposed to study English followed by a Masters of Social Science.

18. He gave evidence that he in fact already had two university degrees from Pakistan: a bachelor of sociology from 2009 and a Masters of Sociology from 2011.  He worked in the social welfare sector in 2012 in Pakistan.

19. He said that he had wanted to attain the Masters of Social Science so he could return to Pakistan and work in the social services and development sector.

20. As suggested to him at hearing, the tribunal considers that he was sufficient well qualified to work in social services and development in Pakistan holding the Masters degree he had from Pakistan, and was sufficient well placed to compete for jobs in that sector against other Pakistanis with the qualifications he had attained before entering Australia.

21. The Tribunal does not accept the argument that the applicant was not qualified to work in the sector, or compete for work in the sector, on the basis of his proposition that a bachelor degree in Pakistan is only equivalent to an ‘associate’ degree and a Masters degree is akin to a Bachelor’s degree.  Nonetheless, the applicant is a university graduate with two degrees and the tribunal is satisfied he had, before ever coming to Australia, a sufficient educational basis to compete for work in the sector in Pakistan. 

22. The Tribunal does however accept that a second Masters degree might have allowed the applicant to achieve a slightly higher salary or slightly greater responsibilities in a role in Pakistan.  As suggested, this increment does not appear to warrant the significant investment of time and money in the gaining of the Australian master’s degree.  The modest increment in salary (in Pakistani Rupees) one might expect would do little to offset the significant costs of obtaining the Australian Masters degree (in Australian dollars).

23. As suggested therefore, the tribunal has difficulty accepting that the Australian Masters degree was proposed for the purposes of augmenting the applicant’s career in Pakistan.

24. In any event, the applicant gave evidence that he did not achieve the English test marks necessary for admission to the Masters program.

25. As suggested, the Tribunal finds difficult to accept what the applicant does next.  Instead of seeking a course which was complementary to his claimed aspiration to further his career in Pakistan in Social Services and international development, and in substitute of the Masters program that he failed to gain admission to, the applicant drops his level of study from the Master’s degree level to a certificate III in light vehicle mechanical technology.

26. The Tribunal described this action to the applicant as a ‘spectacular’ fall in educational level which caused the delegate, and causes the Tribunal, significant concern.

27. If the applicant had sought a program which might have substituted for the Master’s program he had proposed, the Tribunal might have been disposed to accept that the applicant came to Australia to attain qualifications designed to bolster his career in Social Services and Development.  Apart from seeking admission to another Master’s program, the applicant did not otherwise explore the plentiful course options in Australia in social science and international development.

28. His move to a certificate III course in the VET sector he says, as he states in a letter to the delegate at folio 11 of the Department file, was driven by the fact that his father and family had always been in the automotive industry.  The tribunal accepts this.  However, the applicant had no meaningful response to the proposition that he had clearly indicated an ambition not to follow in the footsteps of his father by attaining two university degrees in Pakistan, by working in the social services sector, and by proposing to the Australian Government to take a Masters degree in social sciences.

29. He gave evidence that there were three siblings already working in the family’s mechanic and transport business, two of whom worked in the workshop, and had no meaningful response to the proposition that at least one of those siblings did not need an overseas education in order to play as successful role in the mechanical aspects of the workshop.

30. Despite this, the applicant contends that he wishes to acquire automotive and mechanical skills in Australia, which are necessary to the business.  He completed three VET sector courses in this field, the last of which was a diploma in Automotive Management. 

31. The Tribunal requested that he provide a current COE 7 days before the hearing.  He said in evidence that he obtained a COE for an advanced diploma of Leadership and Management the week before the hearing.  He agreed that that course was not proposed when he applied for the visa.  That is the course he now proposes for the grant of the student visa.  He agreed that it is the case that the courses he proposed with the visa application are not complete.

32. As suggested to him, the Tribunal considers that the timing of this latest proposal for study is of concern.  As suggested, the course now proposed was, on the evidence, not of sufficient value to have been proposed with the visa application.  Through the passing of time during Tribunal processing all of the courses originally proposed have been completed.  On one view, now possessed of three VET sector qualifications in the automotive field, the applicant might have felt ready and able to return to the automotive business already waiting for him in Pakistan.

33. Rather than return, having completed the courses he had proposed for the visa, the applicant now produces a COE for a general course in management which the tribunal suggested to him was not as relevant to his claimed ambition to join his family’s automotive business as was the diploma in automotive management, which as its name suggests was a management course tailored specifically for an automotive enterprise.

34. For these reasons, as suggested, the tribunal finds the advanced diploma of Leadership and Management, more general than the already attained diploma in Automotive Management, and proposed only when all other courses proposed had been completed, is of very limited value to the applicant’s proposed future.

35. As suggested, this in turn suggests that the course may have been proposed for a reason other than its value to the applicant’s stated career plans.

36. The applicant gave evidence that he married his wife in August 2015.  She remains in Pakistan, has a Master’s degree in psychology, does not work, and stays at home.  He resisted the proposition that he did not intend to bring her to Australia as his dependent.  He had no meaningful response to the proposition that that may not have happened yet since as he had no substantive visa since being refused the visa, he was not yet in a position for her to satisfy secondary student visa criteria.

37. In other evidence, the applicant said he had a brother in Australia who obtained permanent residence as an accountant last year.  He denied that he had the same intention of obtaining permanent residence as his brother had done.

38. The main thrust of the applicant’s oral and written material is that upon being disappointed that he could not gain entry to the Master’s program, he reverted to studying automotive material in the VET sector so as to integrate himself into the family’s existing automotive business in Pakistan, and that all of his personal, familial and financial connections and assets remain in Pakistan, awaiting the return that he intends to make.

39. That is the thrust of his written material to the Department and to the tribunal, and of his oral evidence.

40. It is his contention that his wife, his family members, and his life are in Pakistan and he has overwhelming incentive to return and end his residence in Australia.

41. As suggested to him, his actions indicate otherwise. 

42. Upon completion of three VET sector courses in the automotive field, the applicant was well qualified, superfluously so, to return to the family’s workshop and automotive business.  He possessed technical mechanical skills, as well as management skills adapted to an automotive enterprise.  Not proposing any further technical courses it might be presumed he was satisfied he had acquired the ‘technology’ at ‘prestigious’ providers he referred to at folio 11 DIBP file.  The presence of his family and wife in Pakistan provided yet further incentive for him to take his skills home and utilise them, and to be reunited with his wife, who he had seen little since their marriage.

43. The tribunal considers that if the applicant’s various claimed incentives to return carried the weight that is claimed, and being well positioned to enter the family business, the applicant would have departed Australia instead of producing a COE for a course of very limited value to his stated future goals. 

44. Put quite bluntly, if the applicant had intended to return to Pakistan, he had every reason to upon completion of the diploma in automotive management.  He had very little reason to continue to pursue Tribunal review and nothing prevented him from departing upon completion of the study that he proposed when he applied for the visa.

45. He did not. 

46. For all the reasons above, the Tribunal finds that the applicant did not cease his residence in Australia because he wishes to live in Australia into the future, as his brother now does as a permanent resident.  By implication, the tribunal finds that the applicant’s wife awaits a time when he again holds a substantive visa where she may satisfy secondary visa criteria as a member of his family unit, so she may join him in Australia.

47. For the above reasons, the tribunal finds that the applicant does not intend to cease residence in Australia in the foreseeable future and the applicant proposes the study, and seeks the visa, for the purposes of prolonging his residence in Australia and so that his wife may join him here.

48. 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).

49. 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

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

    Adrian Ho
    Member