1507246 (Migration)

[2015] AATA 3644

1507246 (Migration) [2015] AATA 3644 (16 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr AHMED ABDELMONEIM ABDELMOEZ MASAHEL

CASE NUMBER:  1507246

DIBP REFERENCE(S):  BCC2015/767821

MEMBER:Susan Pinto

DATE:16 November 2015

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2015 at 4:00pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Egypt, aged in his early 30s. He arrived in Australia on a Subclass 572 (Student) visa on 22 April 2008. Since that time, the applicant has completed courses at the certificate and diploma level in the Vocational Education and Training sector. He has also been enrolled in a number of different courses, many of which were cancelled. At the time of application, the applicant was enrolled in an Advanced Diploma of Management, commencing in July 2015 and ending in April 2016. The applicant has also enrolled in a Bachelor of Business at Universal Business School Sydney (UBSS) which will commence on 18 July 2016. The course is due to cease on 21 June 2019.

2. The applicant applied to the Department of Immigration for the Student visa on 10 March 2015.

3. The delegate refused to grant the visa because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay in Australia as a student. The delegate stated that since the applicant’s arrival in Australia in April 2008 he has completed only five courses at the Vocational Education and Training sector and has maintained enrolment in short, inexpensive courses. The delegate stated that this indicates he is using the Student visa program to maintain residence in Australia, rather than due to any genuine interest in study and academic progress. 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).

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

6. The issue in this 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)    …

7. 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.

8. 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.

9. The applicant provided a copy of the delegate’s decision record to the Tribunal. The decision record indicates that since his arrival in 2008 the applicant has completed an English course; a Certificate IV in Business; a Certificate III in Business Administration; a Diploma of Business; and a Certificate IV in Small Business. At the time of application he had enrolled in a Diploma of Management; an Advanced Diploma of Management and a Bachelor of Business. The applicant has also had enrolments in various courses cancelled including in Small Business Management; Accounting, Aged Care, and Information Technology (Multimedia). 

10. The Department invited the applicant to provide comments in relation to the Genuine Temporary Entrant Criterion; specifically the fact that he had completed short, inexpensive courses and has not achieved a reasonable completion level in the seven years he has been studying in Australia. The Department also advised the applicant that in his previous Student visa application he had claimed he had enrolled in a Certificate III in Business Administration, a Certificate IV in Small Business Management and a Diploma of Marketing because he wanted to gain more business knowledge to manage his family business. The applicant was advised that although he completed the Certificate III in Business Administration and the Certificate IV in Small Business Management, he did not complete the Diploma of Marketing and instead chose to study Management. The applicant was advised that it appears he has enrolled in courses to secure a further Student visa rather than due to a genuine interest in study and overall academic progress. The applicant was asked to provide evidence in relation to the family business he claims he will manage upon his return to Egypt.

11. In response, the applicant provided statements of attainment in relation to his Certificate III in Business Administration, a Certificate IV in Small Business Management, a Certificate IV in Business, a Diploma of Business, and a screenshot of the units required for the Diploma of Management. He also provided his marriage certificate, a birth certificate for his daughter, and property documents.

12. In a statement in response to the invitation to comment, the applicant stated that he chose to change his course to a Diploma of Management because the course structure for the Diploma of Marketing is different from the course structure of the Certificate III and Certificate IV in Small Business and he needed to have the proper knowledge about techniques and information on how he can handle his business in the future. The applicant states that he has included a copy of the units he is currently undertaking for the Diploma of Management, followed by the Advanced Diploma of Management and Bachelor of Business which he believes will cover his purpose and future plans. The applicant states that he has provided a copy of the apartment and land that he purchased in Egypt in February 2010 for his future plans. As soon as he has finished his studies he will use this property to pursue his personal business in electronics and cables.

13. The applicant also states that he decided to study at the Australian Academy of Commerce because the course fee is affordable and it is located in the CBD where transport is not a problem. He also states that studying in an English speaking country such as Australia will provide him with exposure to English which will assist him to establish his business. The applicant also states that he is a married man and his family is in Egypt and he will return to his home country when he finishes his studies.  

14. Following the lodgement of the application to the Tribunal, the applicant provided a statement from the Australian Academy of Commerce stating that the applicant is enrolled in a Diploma of Management which he began studying on 14 July 2014 and completed on 11 October 2015, and his attendance was 81.48%. The applicant also provided a statement of attainment for the Diploma of Management, dated 11 October 2015.

15. At the Tribunal hearing, held on 12 November 2015, the applicant confirmed that he arrived in Australia in April 2008. He completed high school studies in Egypt and also completed some studies at the Tourism Institute. The applicant worked in Five Star hotels in Egypt before coming to Australia. The applicant stated that he came to Australia to study Information Technology, but the college closed down and he then enrolled in Aged Care. When asked why he enrolled in Aged Care, the applicant stated that he wanted to help his father, but he did not pursue the course and his father passed away at the end of 2012. The applicant confirmed that he is currently enrolled in Management and he wants to undertake a Bachelor of Business. When asked his reasons for enrolling in these courses, the applicant stated that it so he can be involved in the operation of the family business. The applicant stated that his family has an electronics factory in Egypt. The applicant’s father’s friend was previously managing the business, but the business has ceased operating following his father’s death. The applicant confirmed that the business has ceased operating in 2012. The applicant stated that he has provided evidence of the land for the factory and the business which he will re-establish upon his return to Egypt.

16. The Tribunal commented that he appears to have been enrolled in a number of short, inexpensive courses and it has concerns that he is doing so in order to maintain residence in Australia, and not because he is a genuine student. The applicant stated that he was initially somewhat uncertain about his career path, but he is now 30 years of age and he decided it was time to commit to his studies and complete the Bachelor degree. The applicant stated that it is his “dream” to finalise his studies in Australia and to return to Egypt to look after his wife and daughter.

17. The Tribunal has considered the evidence set out above. The Tribunal accepts that the applicant has family commitments in Egypt. The Tribunal also accepts that he has provided evidence of property ownership. However, the Tribunal is not satisfied that these factors establish he is a genuine applicant for entry and stay in Australia as a student. The Tribunal considers that the applicant’s evidence in relation to the family business which he purportedly plans to operate upon his return to Egypt was vague and unpersuasive. The applicant’s evidence indicates that the business ceased operating in 2012 when his father died. Given that the applicant does not plan to return to Egypt until 2019 when the Bachelor of Business concludes, the Tribunal considers that his evidence that he will be involved in this business raise concerns that he does not have any genuine plans in relation to this business. The Tribunal also does not accept the applicant’s explanation for why he enrolled in Aged Care and considers his enrolment in such a course is indicative of the fact that he has given limited consideration to the type of studies he has been undertaking in Australia.

18. The Tribunal further considers that the applicant has been in Australia for some seven years undertaking a series of short, relatively inexpensive courses and has achieved very limited academic progress despite his lengthy period in Australia. The Tribunal considers that the applicant has had ample opportunity to pursue a Bachelor of Business and other business courses during the last seven years. The Tribunal considers that had the applicant genuinely wished to pursue a Bachelor degree that he would have done so previously, instead of waiting some seven years before enrolling in this course. The Tribunal considers that the number of short, relatively inexpensive courses that the applicant has undertaken at the Vocational Educational and Training Sector in the seven years he has been in Australia, as well as his enrolment in a number of diverse and unrelated courses, is indicative of the fact that he is relying on the Student visa program as a means of maintaining residence in Australia for a lengthy period. The Tribunal is not satisfied, having considered all of the evidence, that the applicant is a genuine applicant for entry and stay in Australia as a student.

19. 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.573.223(1)(a).

20. The Tribunal has found the applicant does not meet an essential requirement of cl.573.223. 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

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

    Susan Pinto
    Member