1507207 (Migration)

[2016] AATA 4299

1507207 (Migration) [2016] AATA 4299 (18 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanveer Ahmad

CASE NUMBER:  1507207

DIBP REFERENCE(S):  BCC2015/770639

MEMBER:Adrian Ho

DATE:18 August 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 18 August 2016 at 3:57pm

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 10 March 2015. The delegate decided to refuse to grant the visa on 13 May 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 16 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.

   Genuine Temporary Entrant

9. 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)     …

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.

12. 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.

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

    Findings

14. On the applicant’s evidence, and by reference to relevant considerations laid out in Direction 53, the applicant’s oral evidence, and written material provided by the applicant to the Department and tribunal, the applicant has had, and continues to have, incentive to cease residence in Australia:

    a.The applicant had reasonable explanations for why the applicant chose Australia as a study destination, for valuing Australian education and the experiences that brings, and for having made a selection of education providers (see written statement on Department file);

    b.The applicant has close family members and friends outside Australia;

    c.The applicant does not have close family members in Australia;

    d.The applicant has articulated a plan to utilise the skills and knowledge gained in Australia in pursuits outside Australia.

15. On the applicant’s oral and written evidence, by April 2015, he had:

    a.Stayed in Australia for almost 5 years as a student, most of that time being away from his close family and friends outside Australia;

    b.Already graduated with a Bachelor of Commerce from Pakistan in 2008 before ever coming to Australia;

    c.Completed three VET sector courses in automotive disciplines;

    d.Had completed around half of a diploma of management where he was prevented from full completion by circumstances he claims were not in his control, but in the control of his education providers;

    e.Did not propose further automotive study;

    f.Had just conceived of a plan with friends in Dubai to join their automotive business in Dubai or else open a second branch in his home country of Pakistan, or elsewhere.

16. Furthermore, the applicant has offered intelligible explanations for difficulties experienced in completing courses on time (see statement at folio 8) and no negative findings are made against the applicant on that score.

17. A long discussion took place at hearing in which the tribunal put numerous times to the applicant that it saw little value in the applicant studying the VET sector diploma of management and more recently proposed advanced diploma of management (now advanced diploma of leadership and management), given that he was a university graduate from Pakistan with a bachelor of commerce before ever coming to Australia to study in the VET sector.

18. The applicant sought to have the tribunal find that the Pakistani university degree was of little value compared to Australian vocational qualifications.  The tribunal expressed doubt on this score numerous times.

19. As suggested, the tribunal considers the university degree and course to be at a higher level than study at the vocational or TAFE level, which is designed to provide a degree holder with skills in critical thinking and analysis that may be deployed to solves disparate challenges in one’s chosen field. 

20. As suggested, the tribunal finds that the applicant’s bachelor of commerce from Pakistan is more than sufficient a grounding in commerce and business to ready the applicant to own and run an automotive business in Dubai, Pakistan or elsewhere.  As suggested, the tribunal sees little value in the VET sector management courses pursued after April 2015 and now proposed, to the applicant’s future stated plan, when placed next to his bachelor of commerce.  As suggested, to the extent he claims that Australian VET sector qualification carry prestige outside Australia, he already has three VET sector qualification in automotive disciplines.

21. As suggested, the tribunal finds that if the applicant had intended to stay temporarily in Australia the applicant had the necessary personal incentives to depart from April 2015, and the necessary skills, knowledge and qualifications to embark upon his claimed future pursuits outside Australia.

22. However, the applicant did not cease his residence in Australia.

23. Instead, the applicant proposed further stay and study, proposing VET sector management courses which for the reasons above, the tribunal finds have little incremental value to the skills, knowledge and qualifications already possessed by the applicant.

24. On the evidence, the tribunal finds that the applicant did not cease residence in Australia because the applicant does not wish to cease residence in Australia.  As suggested, for these reasons, the tribunal discounts the weight to be placed on the claim that the applicant has an accumulation of personal reasons to cease residence in Australia, and on the claim that the applicant has an intention to pursue goals outside Australia that will see the applicant cease residence in Australia; such that the applicant intends only to stay in Australia temporarily.

25. For these reasons, out of all the considerations indicated by Direction 53, the tribunal places the greatest weight on the applicant’s own conduct, in proposing further stay to undertake study of limited value to the applicant’s own stated future goals.

26. 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).

27. 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

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

    Adrian Ho
    Member