1509091 (Migration)

[2016] AATA 3595

1509091 (Migration) [2016] AATA 3595 (22 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MOHAMMAD KABIR HOSSAIN
Ms MAHJUBA AKTER DIPA
Mr AARASH MAHTADEER HOSSAIN

CASE NUMBER:  1509091

DIBP REFERENCE(S):  CLF2015/16201

MEMBER:Mara Moustafine

DATE:22 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

Statement made on 22 March 2016 at 2:26pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration to refuse to grant the applicants Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 16 March 2015. The delegate decided to refuse to grant the visas on 16 June 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).

3. The delegate refused to grant the visas on the basis that the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations because he was not satisfied that the applicant was a genuine applicant for entry and stay as a student and that he intended to genuinely stay in Australia temporarily.

4. The applicant appealed to the Tribunal for a review of the delegate’s decision and provided a copy of the decision with his application. 

5. The applicant appeared before the Tribunal on 12 January 2016 to give evidence and present arguments. 

6. The applicants were represented in relation to the review by their 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.

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.

12. The delegate's decision record indicates that he first arrived in Australia on 11 October 2005 on a TU subclass 572 Student visa, which was valid until 31 October 2005. He was subsequently granted two further TU subclass 572 visas, the most recent of which was valid until 8 November 2009. On 6 January 2012, the applicant was granted a Temporary Skilled (subclass 485) visa valid until 06 July 2013 and on 28 October 2013 he was granted a Temporary Work (subclass 457) visa, valid until 28 October 2017 after his employer successfully lodged a business nomination for his position as a Cook. However, on 6 January 2014, his employer advised the department that the applicant did not commence his employment despite the employer's attempts to contact him.

13. On 16 March 2015 the applicant applied for a TU subclass 572 Student visa to undertake study in Diploma and Advanced Diploma of Business.

14. The Provider Registration and International Student Management System (PRISMS) indicated that the applicant had previously been enrolled in the following courses: English for Academic Purposes (twice); Advanced Diploma of Accounting (twice); Certificate III in Hospitality (twice); and Diploma of Hospitality Management.

15. On 20 April 2015, the Department wrote to the applicant inviting him to comment on his circumstances in relation to the genuine temporary entrant (GTE) criterion. However, no response was received.

16. In his decision of 16 June 2015, the delegate concluded that the applicant was not a genuine applicant for entry and stay as a student and that he intended to stay in Australia temporarily but was using the Student visa program to circumvent permanent migration programs. Concerns highlighted by the delegate included that:

    a.There was no evidence to indicate that the applicant had significant ties to his home country or usual country of residence that showed that he had strong incentives to return home at the end of his study in Australia.

    b.This was underlined by the fact that he previous applied for Temporary Skilled (subclass 485) and Temporary Work (subclass 457) visa which indicated intentions of maintaining residency in Australia, rather than due to a genuine interest in study and academic progress.

    c.The applicant was granted a Temporary Work (subclass 457) visa on 28/10/2013 and continued to be holder of this visa up to the date of lodgment of his student visa application on 16/03/2015. However records indicated that the applicant had not commence his employment and consequently breached condition of condition 8107 of his Temporary Work (subclass 457) visa for failing to maintain his employment. This demonstrated a lack of consideration, adherence to and respect of the Migration Regulations. Moreover, it remained unclear how the applicant occupied his time while in Australia between 28/10/2013 to 16/03/2015.

    d.The delegate gave weight to the lack of apparent value of the course to the applicant’s future when considered against the fact that he had been in Australia over 9 years and had not progress past Vocational Education and Training Sector courses. This suggested that he recommenced studying only in order to secure a student visa, rather than due to a genuine interest in his area of study and overall academic progress.

    e.In failing to respond to the Department's request for comment on his application, the applicant’s behaviour was not consistent with that of a genuine student who wanted to secure a student visa to successfully continue his studies. This indicated that the applicant was using the student visa application as a means to maintaining residence in Australia.

17. At the beginning of his hearing on 12 January 2016 the Tribunal discussed with the applicant the reasons his Student visa had been refused in the context of the GTE criterion, noting that a successful applicant had to be both a genuine student and have a genuine intention to remain in Australia temporarily. The Tribunal explored with the applicant his circumstances in Bangladesh and Australia, his immigration and study history and other relevant matters, including the delegate’s concerns at paragraph 16 above.

18. The applicant told the Tribunal that he was currently enrolled but not studying because there was a no study condition attached to his Bridging visa E granted in July 2015 (a copy of the grant notice was provided at hearing). Asked if he spoke to the Department about having this condition removed, the applicant said he did not do so as he did not know this was possible. As the COEs he provided were not current, the applicant was given time to provide current COEs for his courses, which he did on 22 January 2016.

19. The applicant told the Tribunal that since arriving in Australia in 2005 he had completed English for Academic Purposes; Advanced Diploma of Accounting; and a Diploma of Hospitality Management (copies of certificates provided at hearing). The applicant confirmed that he held a Skilled 485 visa in from January 2012 to July 2013 and said he then applied for a 457 visa and worked for two years but that his sponsor withdrew his support because he was ‘asking for something else’ – ‘money’, which the applicant refused to pay, so he ‘decided to go for a Student visa again’ so that he can start his restaurant business in Bangladesh after completing his studies in business.

20. When asked about the reference in the delegate’s decision at paragraph 12 that, while in October 2013 he was granted a 457 visa valid until October 2017, his employer advised the Department that he never commenced work, the applicant said the employer was ‘lying’ because he had asked for money for the visa and that he had worked for him for two years.

21. The applicant told the Tribunal that, in spite of losing his sponsor, he continued to work in another restaurant while holding the 457 visa until March 2015, when he applied for his latest Student visa, because ‘had to survive’.  The Tribunal is concerned that the applicant failed to advise the Department of his changed situation but remained in Australia in breach of the conditions of his Temporary Work (subclass 457) visa.

22. Asked why he did not respond to the Department’s invitation to comment on GTE issues in April 2015, the applicant claimed that he told his lawyer but ‘did not know what he did’.

23. The applicant said that, due to the no work condition on his Bridging visa, he had not been working since he applied for his Student visa and that his wife no longer worked at Woolworths. They had been living on his savings and money from parents and friends.

24. As discussed with the applicant, the Tribunal is concerned that the long time he has been in Australia (over ten years) and the fact that he twice applied for and held work visas (subclass 485 and subclass 457), suggests an interest in maintaining residence in Australia, rather than completing his studies and returning to work in Bangladesh. The applicant’s response, that he was ‘very frustrated’ as he had twice applied, but failed, to get permanent residency strengthens the Tribunal’s view that the applicant is not genuine in his intention to remain in Australia temporarily; notwithstanding his claim that he has now decided he has ‘had enough’ and wants to return to Bangladesh after gaining some business knowledge.  

25. Asked about his intentions on return to Bangladesh, the applicant said that as he was a chef, he wants to go home and start a business in the capital, Dacca. However, it is clear that the applicant has not made any concrete plans to set up his business. When asked about this, the applicant spoke vaguely about having some property in Bangladesh and being able to get a loan.    

26. While the Tribunal notes that the applicant has some family ties in Bangladesh as his mother, brother and sister live there and he had returned to Bangladesh three times since 2005, it does not consider this to be a strong incentive to return home as the applicant’s wife and young child live with him in Australia.

27. 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).

28. 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.

29. As the first applicant does not meet the primary criteria and the second and third named applicants have applied solely and respectively as the spouse and dependent child of the first applicant, it follows that the second and third named applicants do not meet the secondary criteria.

    DECISION

30. The Tribunal affirms the decisions not to grant the applicants Student (Temporary) (Class TU) visas.

    Mara Moustafine
    Member