1510445 (Migration)

[2016] AATA 4189

1510445 (Migration) [2016] AATA 4189 (21 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adeel Ur Rehman

CASE NUMBER:  1510445

DIBP REFERENCE(S):  BCC2015/758184

MEMBER:Gina Towney

DATE:21 July 2016

PLACE OF DECISION:  Sydney

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 21 July 2016 at 1:02pm

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. The applicant applied to the Department of Immigration for the visa on 9 March 2015, with the course listed being a Diploma in Hospitality, with course dates from 13 October 2014 to 16 September 2016.

3. In support of his application the applicant made a submission, dated 7 April 2015. The submission recorded the following (in summary):

   ·the applicant would like to obtain work in a 4 to 5 star hotel in hospitality and then start his own business. The applicant studied management to obtain skills to run an organisation, and then realised that accounting was important and enrolled in accounting.  Once he was studying accounting the applicant came to understand that accounting is a big field, and decided to move back to management;

   ·the applicant decided to study tourism, as it on the rise in the northern part of Pakistan, where he is from.  The applicant will have an upper hand if he has a foreign education, which is well regarded in Pakistan.  Also, as the applicant owns his own commercial land he would have a great opportunity to start his own business in hospitality;

   ·the applicant chose his education provider because it’s one of the most reputable colleges in Sydney, it has good facilities, methods of teaching and the teachers are competent. Also, Australia is a developed and peaceful country with quality education providers, and is well recognised;

   ·the applicant has completed both a Diploma of Management and an Advanced Diploma. The applicable plans a career in hospitality, and his prior studies are closely related to his current study of Hospitality Management. After the applicant completes his Hospitality Management course he aims to complete a Bachelor of Hospitality Management, and then work for a couple of years before starting his own business;

   ·the applicant’s younger brother owns a business in Abbotabad called Ahmed Printing Services, as well as four apartments. The applicant’s family is closely bonded, and as the applicant is the only person overseas his family are putting pressure on him to return after he has successfully completed his study. The applicant has a strong financial background, will be able to start his own restaurant with the help of his brother;

   ·the applicant’s family recently sent AU$10,000 to support his studies, and the applicant has provided supporting documents.

4. The applicant also provided evidence of courses he has successfully completed whilst in Australia including the following:

   ·a Diploma of Management, issued 14 November 2012;

   ·an Advanced Diploma of Management, issued 5 September 2014.

5. 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).

6. The delegate decided to refuse to grant the visa on 17 July 2015 because the applicant did not satisfy the requirements of cl.572.223 of Schedule 2 to the Regulations in that he did not satisfy the genuine temporary entrant requirements. More specifically the delegate found the following (in summary):

   ·the applicant arrived in Australia on a Student Visa on 7 February 2012, and was subsequently granted a further Student Visa whilst onshore.  The applicant has spent a significant period of time in Australia without departure, and this suggests his potential circumstances in Australia outweigh any incentive for him to return to Pakistan;

   ·examination of the Provider Registration and International Student Management System (PRISMS) shows the applicant has previously enrolled in nine courses, including in the area of Management, Accounting and Hospitality, but that he has completed only two of the courses;

   ·The applicant’s current enrolment shows a third change in education stream and is unrelated to his previous studies, and therefore the value of these courses to his future is in question;

   ·the delegate considered the submissions made by the applicant, including in response to a request by the department, but notes that his current enrolment would extend his time in Australia to more than four years and seven months.  In addition the applicant continues to enrol in low-level, low-cost courses within the same sector (572 Vocational Education and Training sector). This demonstrates a lack of interest in study and lack of academic progress, and supports a finding the applicant is using a Student Visa system to maintain residency in Australia;

   ·the applicant has not provided any strong or influential reasons as to why he has chosen the course of study, and although he stated he plans to obtain a job in a hotel, it is unclear how the chosen course of study and ambiguous series of courses would assist him. The delegate gave no weight to the job advertisements provided by the applicant (being from Pakistan and seeking restaurant managers with experience), and notes the applicant’s education history and statement do not support the notion that he has the required skills to fulfil the positions advertised;

   ·the delegate found it difficult to reconcile that the applicant has spent the majority of the past three years undertaking courses of study related to Management and Accounting and that he then enrolled in Hospitality, being an unrelated stream of education. The delegate found that the applicant’s actions did not follow a logical pathway;

   ·the applicant has not completed any courses above the Vocational Education and Training sector level, and has enrolled in short and inexpensive courses, which indicates that he is using the Student Visa system to maintain residency rather than from a genuine interest in study and academic progress.

7. The applicant appealed to the Tribunal and provided a copy of the Departmental decision. The applicant also made submissions in support of his application, dated 11 February 2016. The submission record the following (in summary):

   ·the applicant entered Australia on 7 February 2012 to study a Diploma of Management, which he completed in November 2012;

   ·the applicant then enrolled in an Advanced Diploma of Accounting from 15 April 2013, but could not enrol in the first semester.  The applicant enrolled in the second semester, but could not sit the exams due to illness, (the applicant provided a medical certificate recording that he was suffering from a ‘medical illness’ and would be unfit for study from 8 June 2013 until 7 July 2013).  The applicant then discontinued the course at the end of second semester in August 2013;

   ·the applicant then commenced and completed an Advanced Diploma of Management (which he completed in September 2014);

   ·The applicant then commenced a Diploma of Hospitality on 13 October 2014, which is due for completion on 6 November 2016 and in which he has completed 17 of the 28 subjects, but he had to stop studying because of the refusal of his Student Visa application (the Visa was refused on 17 July 2015);

   ·the applicant’s Student Visa application was refused on the basis that he did not satisfy the genuine temporary entrant criteria. In relation to the applicant’s circumstances in his home country, the applicant’s entire family is in Pakistan, his father has died and his mother works for the government. The applicant is the eldest of five siblings, and has two brothers and two sisters, and must reunite with his family to support them. In addition the applicant is of an age where he wants to get married and is under pressure to return and enter an arranged marriage;

   ·the applicant wants to complete a Diploma of hospitality and return to Pakistan and reunite with his family, and start a restaurant business, as soon as possible.  The applicant has completed 17 of the required 28 subjects, and wants to complete the remaining subjects and return to Pakistan;

   ·there are no gaps in the applicant’s study history and he has been financially supported by his family. The applicant has completed all courses he has enrolled in, with the exception of the Advanced Diploma of Accounting, which he stopped after discussions with his brother where he found the Diploma of Hospitality was more relevant to his future plans and career. He has no established ties in Australia and there is no evidence that he is using the Student Visa system to maintain residency;

   ·the applicant owns a commercial property in Pakistan, and whilst in Australia the applicant has learned the benefits of having a restaurant, and wants to return and open a restaurant with his brother in Pakistani.

8. The applicant appeared before the Tribunal on 21 July 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.  The applicant was represented in relation to the review by his registered migration agent. An audio recording of the hearing is available.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 572.

11. 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)     …

12. 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.

13. 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.

14. In relation to the current matter, the Tribunal raised several issues of concern, however these been addressed through submissions made by the applicant and the agent. In relation to the value of the course the applicant’s future, whilst the Tribunal acknowledges that the applicant has obtained both a Bachelors and a Masters degree in Economics overseas, it accept his evidence that study at a lower level is relevant because it is in a new area, being hospitality. The Tribunal also accepts that the areas of hospitality, management, and possibly accounting, can all be seen as related if accepting that the applicant plans to pursue his own hospitality business in Pakistan.

15. In relation to the applicant’s immigration history, the Tribunal notes of the applicant has not departed since first entering Australia on 7 February 2012, but accepts his evidence that he had planned to return in 2015 but delayed his trip due to the time taken by both the Department and the Tribunal to make a finding in the present matter. The Tribunal also accepts the applicant’s evidence that he will return to Pakistan for a visit if his current Visa is granted.

16. In relation to the applicant’s study history, the Tribunal accepts the applicant’s evidence that he completed a Diploma of Management in November 2012, he then enrolled in an Advanced Diploma of Accounting from early 2013 to August 2013, and then recommenced his Advanced Diploma of Management in August 2013 until August 2014. The applicant commenced his current course, being a Diploma of Hospitality, in October 2014. Current evidence before the Tribunal is that the applicant has received zero recognition of prior learning, and is due to complete the course on 3 March 2017, (letter from the education provider dated 18 July 2016).

17. 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 does meet cl.572.223(1)(a).

18. In making this finding the Tribunal notes that the delegate from department raised issues of genuine concern, however it finds that the applicant has addressed these issues in his submissions. 

19. 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

20. 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.

    Gina Towney
    Member