1516653 (Migration)

[2016] AATA 4427

1516653 (Migration) [2016] AATA 4427 (21 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SYED WAQAR ALI

CASE NUMBER:  1516653

DIBP REFERENCE:  CLF2015/60654

MEMBER:Lilly Mojsin

DATE:21 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2016 at 2:32pm

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 29 September 2015 in order to study a Diploma of Systems Analysis and Design at Warwick Institute of Australia.

3. At the time the visa application was lodged the Student (Temporary) (Class TU) visa contained a number of subclasses. Generally speaking, the subclass that can be granted to an applicant who applies as a student 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), or whether the applicant has the support of the relevant Minister (Subclass 576).

4. The delegate refused to grant the visa on 13 November 2015 because the applicant did not satisfy the requirements of cl.572.223(1)(a) of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant is a genuine applicant for entry and stay as a student.

5. The applicant appeared before the Tribunal on 26 August 2016, by telephone, to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent who did not attend the Tribunal hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. The applicant was granted an initial Student visa (TU 573) offshore on 12/02/2013 which was valid until 30/09/2015. He arrived in Australia on 28/05/2013.

9. He applied for a Student (Class TU subclass 572) visa on 29/09/2015 to undertake a Diploma of Systems Analysis and Design at Warwick Institute of Australia.  The applicant had completed English Language Programs and was enrolled in Advanced Master of Professional Accounting at UWS. Due to an accident at work and the death of his grandmother he sought to defer his studies but received no response so he went to Mackay in Queensland. His Confirmation of Enrolment [CoE] was cancelled by UWS and his attempts to enrol at USQ were unsuccessful.

10. In evidence to the Tribunal the applicant stated that he has completed an MBA from England. He has completed half his degree from UWS and he wants to finish that degree. The diploma course in which he is enrolled is useless. He has relied on the information provided to him by various education and migration agents and he has been misled. He now seeks this visa but he does not want to study for a diploma. The migration agent has advised him that once he gets the visa they can explain his circumstances and seek another visa. He wants to complete 4 more units in his accounting course. He is a genuine student and does not want to stay in Australia. He wants to work in a family business and will work in that business. He states that it is embarrassing for him to go back to Pakistan without completing his qualifications.  He is single, he has no-one in Australia all his family are in Pakistan. He does not have to do military service.

    REASONS AND FINDINGS

11. The issue in the present application 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)….; 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;

    ·……….; 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. The applicant has no military service commitments in Pakistan and there is no evidence before the Tribunal to suggest that he has breached immigration laws of Australia or any other country.

15. The applicant applied to study a Diploma of Systems Analysis and Design but does not intend to study that course and instead wishes to complete his Accounting Degree. The Tribunal accepts that this course is of no value to the applicant’s future. The applicant claims, and the Tribunal accepts, that he applied for deferment of his studies but his CoE at UWS was cancelled due to circumstances beyond his control ie the death of his grandmother and an accident in which he was involved.  The applicant claims, and the Tribunal accepts, that he was badly advised when he attempted to re-enrol at USQ and without a visa he is unable to complete his studies in Accounting.

16. The Tribunal accepts that the applicant’s family all live in Pakistan and he has no family in Australia. The Tribunal also accepts that there is no value to the applicant’s future to study a Diploma of Systems Analysis and Design, in light of his MBA qualification from England and his desire to complete his Accounting qualifications. The Tribunal also accepts that the applicant will be embarrassed returning to Pakistan without the qualifications he wanted to achieve.

17. As the applicant has stated that he does not intend to study the course in which he is enrolled and the Tribunal accepts that the course in which he is enrolled has no value to his future, the Tribunal finds, having considered the applicant’s circumstances, immigration history, and other matters it considers relevant, the Tribunal is not satisfied that the applicant is not a genuine applicant for entry and stay as a student.

18. Accordingly, the applicant does not meet cl.572.223(1)(a).

19. 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

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

    Lilly Mojsin
    Member