1600810 (Migration)

[2016] AATA 4810

1600810 (Migration) [2016] AATA 4810 (7 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dany EL HAKIM

CASE NUMBER:  1600810

DIBP REFERENCE(S):  CLF2015/53333

MEMBER:Penelope Hunter

DATE:7 December 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 07 December 2016 at 2:58pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 570 – Genuine Temporary Entrant – 11 years in Australia – Previously completed bachelor degree – Enrolment in English course to maintain residency – Unsuccessful application for permanent residency

LEGISLATION

Migration Act 1958, s 65, s 499

Migration Regulations 1994, Schedule 1, Item 1222, cl 570.223

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 27 August 2015. The course  listed was English language, with course dates from 21 September 2015 to 11 December 2015. He set out in his application that he was taking the course to improve his writing skills to be able to reach a score of 7 in IELTS testing. After this CPA Australia will be out to assess his qualifications.

3. In support of this application, and in response to enquiries from the Department, the applicant made a submission on 10 October 2015, in support of his application. The submission set out the following (in summary):

   i.The applicant confirmed previous study in Australia studied at a Bachelor degree level and that he had taken other business and accounting courses. He confirmed that he was currently undertaking a Certified Practicing Accountant (CPA) professional program. He claimed that his study had not improved his level of English for the purpose of promotion or to assist in obtaining more beneficial employment.

   ii.The applicant attached with his submissions samples of IELTS testing he had undertaken while in Australia during the last 10 years. He claimed these demonstrated that he was still struggling with writing and speaking in English. In addition to the course he wished to study, the applicant claimed he was also relying on books from the library to improve his English skills.

   iii.In his country there are lots of international companies searching for high levels of English language structure, in terms of vocabulary and grammar. He believed that the course assist him to be hired by a multinational company.

4. 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).

5. The delegate decided to refuse to grant the visa on 12 January 2016, because the applicant did not satisfy the requirements of cl. 570.223 of Schedule 2 to the Regulations. More specifically because he did not satisfy the genuine temporary entry criteria. In summary the delegate found the following:

   i.The applicant had already studied for seven years successfully in Australia. An examination of the Provider Registration and International Student Management System (PRISMS) indicated that he had previously enrolled in an English course, Advanced Diploma of Accounting, Certificate III and IV in Business, and a Bachelor of Commerce. It was found that the applicant had not provided any substantial reasons as to why he had chosen to study English given his previous study, and the fact that he had studied at a bachelor degree level in Australia. It was found that there was a lack of value to the course for his future.

   ii.The applicant first arrived in Australia on 17 September 2005 on a Student (Class TU) (Subclass 572) visa. He was also granted a temporary Skilled visa subclass 485 on 7 May 2013. It was found that he passed the requirements of that visa, including the English requirement.

   iii.Considering its history of more than 10 years stay in Australia the delegate was not satisfied that his purpose of enrolling in the intended course was improving his English. Rather, the applicant appeared to be using the Student visa program as a means of maintaining ongoing residency in Australia. It was considered that he did not genuinely intend to stay in Australia temporarily

6. This is an application for review of the decision of the delegate. With his application for review to the Tribunal the applicant has provided a copy of the delegate’s decision.

7. The applicant provided further submissions to the Tribunal on 26 October 2016 and 25 November 2016. Included in the submissions were of copies of the applicant’s academic certificates, IELTS test results, sample exam papers library loan records details of his CPA program. The applicant also made the following submissions in summary:

   i.He came to Australia to gain knowledge and experience. He is undertaking courses in business and English because they complement each other. He is still underdoing the CPA’s professional program which a self-study.

   ii.He likes the Australian lifestyle, and Australian government is giving him the opportunity to live the Australian dream through the skilled independent Visa subclass 189. In order to be recognised as an accountant he has to score 7 in each band of the IELTS test. For this reason he enrolled in the English course, to improve his skills in listening and reading. He is very close unfortunately needs more resources and support to reach the required score. These resources such as special courses, libraries and the Internet are much easier for him to get in Australia rather than his home country of Lebanon.

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

9. The applicant confirmed that it was his intention to apply for a Subclass 189 Skilled - Independent permanent visa. The applicant repeated the information contained within his written submissions that in order to obtain certification as a CPA was required to obtain a score of 7 in all elements of the IELTS test. He undertook the course in English to improve his written skills. He provided to the Tribunal evidence of completion of his English language course, the subject of the visa application and discussed with the Tribunal his subsequent attempts at the IELTS testing in which he had not yet achieved the desired score.

10. The applicant was not currently studying or subject to an offer of enrolment. It was put to the applicant that to be granted a Student visa he had to be studying or subject to a current offer of enrolment. The applicant said that he was doing self-study in English with books from the library and he was engaged in the process of seeking CPA certification. The applicant did not claim that this process of professional registration as a was a principal course for Student visa subclass purposes. He told the Tribunal that he had finished his English course at the time his Student visa was refused and did not think that he could enrol in any further course of study. When asked who had told him he could not study, the applicant advised that he just assumed that this was the case as his visa was refused.

11. The Tribunal discussed with the applicant whether he could undertake relevant English courses in Lebanon. He claimed that Arabic and French were easier to study, there was some English tuition available, however he did not consider it very thorough. Additionally there were not library facilities with English books and internet connection was not reliable.

12. The applicant confirmed that he has been in Australia for the last 11 years and it was his intention to remain permanently in Australia. He enjoyed the lifestyle in Australia and he had a brother who is married and lives in Sydney. The applicant told the Tribunal that he was regularly involved with his niece and nephew and often tutors them for school. He had siblings and his father still in Lebanon. He was not sure how many times he had returned to Australia, it was not that much, maybe four times. One occasion was for a family wedding, another was on the death of his mother. The Tribunal asked the applicant about his history of employment in Lebanon. He told the Tribunal that after he studied in Lebanon he obtained work for a firm in Saudi Arabia for over three years prior to coming to Australia. He did not report any prior employment history in Lebanon to the Tribunal. He was not currently in a permanent relationship in Australia.

13. In relation to his current circumstances, the applicant confirmed that he had successfully studied at a bachelor level. He was currently working part time as an accountant for Horten Medical, he had been in this position for over three years. The Tribunal discussed with the applicant his previous application for a subclass 485 visa and he advised that he was unable to transition to a permanent visa as Horten Medical did not meet sponsorship requirements. In his application the applicant has set out that his salary from employment was $52,000 and the number of hours that he worked was raised with the applicant. He advised that he had reduced his hours since his application was lodged in order to comply with the conditions of his visa. The Tribunal discussed with the applicant whether he was seeking promotion or more beneficial employment, he advised that it was difficult at the moment due to restrictions with the Student visa.

14. The Tribunal raised that the applicant’s circumstances, as a whole, indicated he wanted to remain in Australia permanently and was not a genuine temporary entrant for the purpose of study. Once more the applicant confirmed he wished to remain permanently however he claimed that his study was genuine and he had a selection of his study papers and coursework with him at the hearing which he showed to the Tribunal. He claimed to have a genuine interest in learning and considered that at some point in the future  after he had finished his CPA he may undertake a Masters degree in accounting.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. Having regard to the applicant’s current proposed course of study, the relevant subclass in this case is Subclass 570.

17. The issue in the present case is whether the applicant meets the time of decision criterion in cl.570.223. Clause 570.223(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)     …

18. 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.

19. 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.

20. The Tribunal gives weight to the fact that the applicant had held a subclass 485 visa in 2013 and had been unsuccessful in transitioning to a permanent visa. The applicant conceded in his evidence to the Tribunal that he did not intend to remain in Australia temporarily. His intention was to apply for a permanent visa. The Tribunal notes that it is possible for an applicant to hold simultaneous intentions to remain in Australia temporarily and a desire to remain in Australia permanently if the opportunity arises. The Tribunal considered that it was clear from the applicant’s evidence that at the time he applied for the visa he did not have a genuine intention to stay in Australia temporarily for the purposes of study.  

21. The Tribunal is assisted in this above finding by other elements of the applicant’s evidence. As to the relevance of the course to assist the applicant with his employment pathway, he spoke only about the CPA accreditation assisting him to apply for the subclass 189 permanent visa. When asked about a career pathway and possibility of promotion, the applicant commented that things were uncertain in Australia due to his Student visa being refused. His evidence was that he was not pursuing career options. When asked about his career pathway in Lebanon and the potential for CPA certification to assist him if he returns the applicant spoke only in general terms that prior employment in Australia and any CPA certification would be a bonus if he had to return. The Tribunal considers that there was a lack of value for the English course at the VET level for his future.

22. In addition the Tribunal has had regard to the fact that the applicant has resided in Australia for over 11 years. He has only made short trips to Lebanon for family events during that period. He has no prior history of employment in Lebanon, and he did not demonstrate to the satisfaction of the Tribunal that he has strong ties in his home country. In fact the applicant spoke to the Tribunal about his strong ties his brother’s family and to Australia.

23. The Tribunal has also had regard to the fact that the applicant has enrolled in a short inexpensive course. 

24. It is accepted that the applicant undertook the English course, the subject of his application. It is accepted that he has obtained further skills in English as a consequence of that study. However, the applicant is not currently studying or subject to an offer of enrolment. The Tribunal has considered the claim by the applicant that he did not consider that he could study further once his Student visa was refused, however the applicant did not demonstrate in his evidence that he had a currently intended to undertake further study.  There was the possibility of a Masters degree, but he had no immediate plans. As the applicant is not currently undertaking study in a principal course and does not intend to enrol a course in the immediate future, the Tribunal is not satisfied that he has a reason to remain in Australia on a Student visa.

25. The Tribunal finds on his evidence that he is using the Student visa program as a means of prolonging his stay in Australia with the intention of remaining permanently.

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.570.223(1)(a).

    Conclusion

27. The Tribunal has found the applicant does not meet an essential requirement of cl.570.223. 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.

    Penelope Hunter
    Member