ABBASI (Migration)

[2018] AATA 1132

ABBASI (Migration) [2018] AATA 1132 (4 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SHARIQ MUHAMMAD ABBASI

CASE NUMBER:  1616533

DIBP REFERENCE(S):  BCC2016/2441460

MEMBER:Stephen Witts

DATE:4 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 04 April 2018 at 10:48am

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – family in the home country –  Poor academic progress – History of unrelated courses – Unable to put together a coherent study plan – Using the student visa program to maintain ongoing residential status

LEGISLATION
Migration Act 1958, ss 65, 359AA, 499
Migration Regulations 1994, Schedule 2 cl 500.212

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 on 22 September 2016 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 for the visa on 22 July 2016. At the time of application, Class TU contained two subclasses: Subclass 500 (Student) and Subclass 590 (Student Guardian). The applicant applied for the visa to undertake study in Australia and does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa.

3. The delegate in this case refused to grant the visa on the basis that the applicant did not satisfy the requirements of cl.500.212 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant genuinely intends to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 19 March 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The criteria for a Subclass 500 (Student) visa are set out in Part 500 of Schedule 2 to the Regulations. The primary criteria in cl.500.211 to cl.500.218 must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria. The issue in the present case is whether the applicant is a genuine temporary entrant.

   Genuine applicant for entry and stay as a student (cl.500.212)

7. Clause 500.212 requires as follows:

   The applicant is a genuine applicant for entry and stay as a student because:

   (a)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)the applicant intends to comply with any conditions subject to which the visa is granted, having regard to:

   (i)the applicant’s record of compliance with any condition of a visa previously held by the applicant (if any); and

   (ii)the applicant’s stated intention to comply with any conditions to which the visa may be subject; and

   (c)of any other relevant matter.

   Does the applicant intend genuinely to stay in Australia temporarily?

8. In considering whether the applicant satisfies cl.500.212(a), the Tribunal must have regard to Direction No.69, ‘Assessing the genuine temporary entrant criterion for Student visa and Student Guardian 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.

9. The Direction indicates that the factors specified should not be used as a checklist but rather, are intended only to guide decision makers when considering the applicant’s circumstances as a whole, in reaching a finding about whether the applicant satisfies the genuine temporary entrant criterion.

   Background

10. The applicant arrived in Australia on 9 April 2010 on a TU572 student Visa. The applicant has held 4 student visas all for the 572 vocational education sector.

11. The applicant subsequently lodged an application for a student Visa TU 500 which was lodged on 22 July 2016. This application was refused on 22 September 2016. There is no record of the applicant travelling elsewhere.

12. The GTE criterion requires that the applicant is a genuine student because the applicant intends to stay in Australia temporarily when assessed with consideration of the factors outlined in Ministerial Direction 69.

    Circumstances in home country

13. The applicant is from Pakistan and has now been here eight years.

14. The applicant finished school in his home country and subsequently studied for a Bachelor of Commerce. He asserted he also has qualifications in IT.

15. The applicant has parents, brothers, and a sister back in his home country. He also has a wife back at home who is a civil engineer and they married last year. He did not indicate he had any problems maintaining these personal relationships back at home.

16. Since coming here in 2006 he has only been back briefly for two visits.

17. There is no relevant evidence regarding the following factors indicated by Direction 69 and the Tribunal makes no findings against the applicant based on: any potential military service in the home country, civil unrest in the home country, circumstances in the home country relative to Australia or any other country, or the applicant’s circumstances in the home country relative to others in that country.

    Circumstances and study in Australia

18. The applicant rents in Fawkner with friends. He drives an Uber for between 15 and 20 hours a week.

19. Adopting the procedure in section 359AA of the Act, the Tribunal read out the following statement to the applicant:

    I’d like to talk about your study history and to do that I am going to put to you formally under the law, a piece of information I have.

    The information I will put to you is information that without explanation is something I consider would be the reason, or part of the reason, for affirming the decision under review. Section 359AA sets out this procedure.

    I have before me, Provider Registration and International Student Management System records, or otherwise referred to as PRISMS. This PRISM record from a database that is kept by the education providers and details all your certificates of enrolments, the dates that you remained enrolled and the outcome of the courses.

    This information is relevant to the review because it may lead me to form the view that it documents a history of unrelated courses. It lists courses that weren’t started, or that were started and shortly thereafter cancelled. The consequences of the information being relied on by me may be that I form the view that you do not meet the requisite criteria, more specifically, that you are not a genuine student. This may mean that you are refused the visa which you applied for.

    You may comment on and/or otherwise respond to this information.

    You may wish to ask for additional time to comment on or respond to this information.

    Do you require extra time to consider this information? Or do you wish to continue now?

20. The Tribunal enquired if the applicant understood the information put to him in accordance with s.359AA. The applicant confirmed that he understood. The applicant did not seek an adjournment and elected to respond in the hearing. The applicant indicated he understood and was prepared to proceed.

21. The Tribunal discussed with the applicant his study and enrolment history. The applicant first completed a Diploma of Marketing in November 2010. He then completed a Certificate IV in Business in July 2011. His enrolment subsequently in a Diploma of Management was cancelled in 2012. He then did a Certificate III in Hospitality (commercial cookery) beginning in April 2013. His subsequent enrolment in a Diploma of Hospitality was cancelled in April 2014. He then went on to study a Diploma of Marketing which was completed in June 2014.

22. The courses the applicant enrolled in between 2014 and 2017 were all cancelled. These included an Advanced Diploma in Marketing, a Certificate IV in Commercial Cookery, an Advanced Diploma in Management, and a Diploma of Hospitality. He is now studying a Masters of Networking which he began on 18 July 2016. This is due for completion on 30 July 2018.

23. In his GTE statement the applicant noted that his journey in Australia has been very tough. He indicated that he has had trouble adjusting to life here and this is reflected in his academic record. He indicated that he had been thinking of studying in the IT field instead of pursuing the other courses he has been doing. The Tribunal is concerned that no adequate explanation was given regarding these significant lapses in the applicant’s academic record.

24. The tribunal is concerned that the applicant has not been able to put together a coherent study plan. His latest study venture in IT has only been decided at the last moment and is not reflected in his GTE statement and study plan.

25. The applicant’s non-commencement of studies and lack of academic progress is of concern to the Tribunal. The Tribunal considers that a genuine applicant for entry and stay as a student is a person who genuinely intends to be a student in Australia. The primary occupation of a student is to study and to achieve academic progress.

26. The applicant claims that his intention has always been to stay in Australia temporarily and that he still holds his intention. If that is and was so, the Tribunal considers that the applicant would have developed a coherent and consistent study plan and would not have left so many courses uncompleted. The applicant both in his statements and in the hearing has not laid out a coherent program that he wishes to develop in his future business at home.

27. The fact that the applicant instead proposes further study indicates to the Tribunal that the applicant’s intention is not to cease is temporary stay in Australia. It is a Tribunal’s view the applicant’s main purpose of being granted a further student Visa is to maintain ongoing residence in Australia.

28. The Tribunal has significant concern of the value of the course the applicant has recently started to his stated study program and is of the view that it is just for the granting of further student visas for the purposes of continued residence in Australia. The Tribunal has little confidence that the current course will be completed and that the applicant will remain in Australia temporarily.

29. Accordingly, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australian temporarily.

30. Given the above findings, the Tribunal finds that the criteria for the grant of a subclass 500 student Visa are not met.

    DECISION

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

    Stephen Witts
    Member