Adeel-ur-Rehman (Migration)

[2020] AATA 5402

Adeel-ur-Rehman (Migration) [2020] AATA 5402 (12 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Adeel-ur-Rehman

CASE NUMBER:  1903814

DIBP REFERENCE(S):  BCC2018/5303225

MEMBER:Elizabeth Tueno

DATE AND TIME OF

ORAL DECISION AND REASONS:         12 October 2020 at 3:15 pm (VIC time)

DATE OF WRITTEN RECORD:                29 October 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 29 October 2020 at 12:57pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – genuine temporary entrant as student – significant incentive to return to home country – maintain ongoing residence in Australia – land ownership in Pakistan – lengthy stay in Australia – plans to establish a business – value of proposed course towards employment prospects – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 359; Direction No 69
Migration Regulations 1994, Schedule 2 cl 500.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 7 February 2019 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 500 visa under the Migration Act 1958 (the Act).

2. At the hearing on 12 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. This is an oral decision for file number 1903814 for Mr Adeel-Ur-Rehman.

4. To be eligible for the grant of a student visa a person must be a genuine applicant for entry and stay as a student, having a genuine intention to stay in Australia temporarily.  The applicant must also intend to comply with any conditions subject to which the visa is granted.  This is known as genuine temporary entrant criterion under clause 500.212.

5. You applied for the student visa on 27 November 2018.  Your application was refused by the Ministerial Delegate on 7 February 2019.  After considering your circumstances, immigration history and other relevant matters the Delegate was not satisfied that you are a genuine applicant to enter and stay as a student because the Delegate was not satisfied that you intend genuinely to stay in Australia temporarily.

6. The Delegate concluded that they had serious concerns about your true intention in Australia, they were not satisfied that you had significant incentive to return to your home country of Pakistan, that you had not demonstrated substantial economic ties or personal assets there.  They formed the view that you were using the student visa program to maintain ongoing residence in Australia.

7. You applied to have that decision reviewed by this tribunal.  As was explained in the primary decision, when considering whether someone is a genuine student it is necessary for decision-makers to have regard to the factors set out in Ministerial Direction Number 69.  These issues were discussed in your primary decision and they include your circumstances in your home country, potential circumstances in Australia, whether you have incentive to stay in Australia or return home, whether you are using the student visa program to maintain ongoing residence in Australia, the value of your course to your stated business or career goals, your immigration history and any other relevant matter.  It is not intended as a check-list, but as a guide for decision-makers in considering whether an applicant, on the whole, meets the genuine temporary entrant requirements.

8. The role of the tribunal is to take a fresh look at your application and to consider your circumstances against those issues in Direction Number 69.  The tribunal needs to be satisfied you are a genuine student who genuinely intends to stay in Australia temporarily.  The primary decision and its references to Direction Number 69 clearly put you on notice about the issue as to whether or not you are a genuine temporary entrant.

9. The tribunal sent you and invitation to attend today’s hearing on 25 September 2020.  That invitation specifically refers to Direction Number 69 and you were asked to provide the tribunal with a range of information.  A copy of Direction Number 69 accompanied the invitation sent to you.

10. You have provided the tribunal with a number of documents prior to the hearing today.  That includes a copy of the primary decision, a completed section 359(2) questionnaire, an affidavit of support from your mother, a confirmation of enrolment, academic documents in relation to your previous studies in Australia, certificate of insurance, a translated document in relation to land ownership in Pakistan, an undated statement of purpose prepared by you, travel documents for your return in 2017 to Pakistan, evidence of a money transfer from your mother to you here in Australia, confirmation of college fee payment, a Commonwealth Bank of Australia statement confirming the amount held in an account in your name.

11. The tribunal has had regard to all of these documents.  It has also had regard to the oral evidence you gave at the hearing when you responded to a range of questions that went to the issues in Direction Number 69.  The tribunal has also had regard to the contents of the Department’s file.

12. You arrived in Australia on 7 February 2012.  You have remained in Australia since that time on three student visas.  This is your fourth application for a student visa.  Accordingly, you have been in Australia on temporary visas for approximately eight and a half years.  During that time you have been enrolled and completed a number of courses.  That includes a Diploma of Management, which you completed in November 2012, an Advanced Diploma of Accounting which you did not complete, an Advanced Diploma of Management completed in August 2014, a Bachelor of Business which you did not complete, a Diploma of Hospitality completed in March 2017, a Certificate IV in Commercial Cookery completed in April 2019, a Bachelor of Business Accounting which you never commenced but the tribunal accepts your explanation as to the circumstances there.  You are currently enrolled in a Bachelor of Business Accounting which you commenced in October 2019.  You have provided a confirmation of enrolment in this court which is due to end on 16 October 2022.

13. These studies mean that your time in Australia will be extended to at least October 2022 and if your application for a student visa is granted, the total amount of time you will have spent in Australia on temporary visas will be approximately ten and a half years.

14. The tribunal turns to consider Ministerial Direction Number 69.  In relation to why you are not undertaking the Bachelor of Business Accounting course in your home country of India, you stated in your questionnaire that the standards of education are poor and old and they still teach old methods and techniques.  On the other hand, Australian education is far better and more modern and up-to-date. Australian degrees have demand all over the world and after completing this degree, you’ll have an edge on local students in Pakistan.

15. The tribunal has considered this reason for not undertaking study in your home country.  The first point to make is that it does not appear that you will be in competition with local students in Pakistan for work, given that you intend on opening your own restaurant with your brother in Pakistan on your own land.  The second point to make is that you have previously completed tertiary studies in Pakistan.  That includes a Bachelor of Statistics and Economics and a Masters Degree in Economics.  You also worked as an assistant lecturer for nearly one year prior to you coming to Australia.

16. The tribunal does not consider that you have sound reasons for not undertaking the Bachelor of Business and Accounting in your home country of Pakistan.  You have demonstrated that you have studied at a tertiary level successfully in your home country and there does not appear to be any need for you to obtain an Australian degree so that you can hold a competitive edge over other job applicants since you intend on running your own business.  Therefore, the tribunal does not consider you have sound reasons for not studying in your home country.

17. In relation to your personal ties, you mentioned wanting to start the restaurant with your younger brother in your home country.  You also mentioned in your questionnaire that your mother, two sisters and two brothers all live in Pakistan and that you are in contact with them on a regular basis via social media, such as WhatsApp or Facebook.  You make telephone and video calls to them and you also text each other regularly.  You said that you have a large family in Pakistan and you also have a large circle of friends.  You used to take part in social services in Pakistan and you are also an active member of a political party whenever you are in Pakistan.  You take part in the political meetings of your party.

18. The tribunal considers that you do have personal ties to your home country and that is made up by friends and family and also your participation in local politics in Pakistan.  However, it is of great significance that you have only returned to your home country once in the last eight and a half years.  You returned in April 2017, initially for a one and a half month period, to become engaged.  There were issues with this girl’s family, who were very demanding and making demands that you simply could not meet, therefore the engagement did not go ahead, you stayed a further one and a half months in Pakistan before returning to Australia.

19. In the last eight and a half year period you have spent the duration of that time in Australia, save for a three month period.  The tribunal considers that this strongly suggests that you are able to maintain your family and personal ties in your home country whilst you are living off-shore in Australia.  Accordingly, the tribunal does not consider that your personal relationships and ties in your home country represent a strong incentive for you to return to Pakistan upon the completion of this further course of study.

20. The tribunal has also had regard to your economic circumstances to your home country.  It notes that you have given evidence that you own land in Pakistan and there is a document provided to the tribunal which purportedly relates to this property although there is very limited information contained in this document.  It states the owner of the address, being Adeel-Ur-Rehman, son of Jamil-Ur-Rehman, and it is dated 2007 to 2008.  It would appear to be you that holds ownership of this property and that the value of the land is approximately 110 million rupees.  The nature of the land is commercial.  That is the only document that relates to property owned by you or your family in Pakistan.

21. You appear to be supported by your mother financially whilst you are studying in Australia, as she has provided an affidavit of support stating that her earnings can easily and sufficiently afford all your educational and living expenses for you during your further statements and stay in Australia.

22. The tribunal does not consider that your economic circumstances are of a concern and that they would be an incentive for you not to return to your home country.  The tribunal considers that you have demonstrated that your economic circumstances in Pakistan are reasonable.

23. You have also stated in your questionnaire that you do not have any concerns about military service commitments or about any political or civil unrest in your home country.  Accordingly, the tribunal does not consider these matters would have induced you to use the student Visa to obtain entry into Australia or to use the student visa to remain here indefinitely.

24. The tribunals have regard to your potential circumstances in Australia.  As noted, you have been residing in Australia now for eight and a half years on temporary student visas.  During that time you have obtained employment, mostly as a chef in various establishments.  You had, for a brief period of time, employment as an assistant accountant, but for the last few years you have, first of all, worked as an assistant chef at the Mercure Hotel, you have also obtained employment at Himalayan Restaurant and most recently at a restaurant called Red Chillies where you apparently employed, although it is on a casual basis and when you are required to work for the restaurant.

25. At the hearing you pointed out that you have been studying the Bachelor course without any gaps or break-down in study and that you have just recently completed an examination which you are expecting the results of shortly.  You also pointed out that the only gap in enrolment was between the completion of the Certificate IV course in 2019 and your commencement of the current Bachelor of Business Accounting.  You pointed out that there had been some issues originally with your enrolment in this case which were attributed to your agent at the time.  The tribunal makes no adverse finding in relation to that short period of time when you were not enrolled in the course. 

26. Your living expenses would appear to be covered by your work experience in Australia and also by your family in Pakistan.

27. You have stated in your questionnaire that you have no community ties in Australia.  The tribunal has some difficulty accepting this evidence, given that you have been residing now in Australia for a significant period of time.  In the last eight years you have been able to have stable accommodation, ongoing work and you have studied in a variety of courses, ranging from hospitality to cooking and two business courses.

28. The tribunal would be most surprised if, during the eight years you have not made any ties to Australia such as friendships and the fact that you have had steady employment over the years suggests that you have not had any difficulty in Australia personally.  The fact that you have only spent three months in your home country during the last eight years also suggests that you have established a life for yourself in Australia and that life includes accommodation, ongoing work, and that these matters are in fact ties to Australia.  When considered in light of the value of the proposed course, which will be discussed shortly, the tribunal does have some concerns that you are using this further course of study as a means to maintain ongoing residence in Australia and that in doing so you are attempting to circumvent the intentions of the Migration Program.

29. The tribunal comes now to consider the value of the proposed course to your future.  You have consistently said to the Department and to the tribunal that upon completion of the current course you intend on returning to Pakistan to use the land that you own and start a restaurant with your brother.  You intend on serving Asian-type food and that you are also going to be drawing on your experience as a chef in Australia, such as when you worked at the Mercure Hotel or Nando’s, and that you are going to be serving fast-food as well as Asian food at this restaurant.

30. It is clear that a large number of courses you have studied in Australia are all relevant to your future goal.  The question is whether the proposed Bachelor of Business Accounting course is relevant and will assist you.  The tribunal takes into account that you have previously been enrolled in a Bachelor course on a number of times in Australia - sorry, on a previous occasion, which you did not complete.  This was the Bachelor of Business course that you were enrolled in, in 2015 at Holmes Institute.  It is also significant and relevant that you have previously completed a Bachelor of Economics and Statistics as well as the Masters in Economics. The tribunal considers that these areas of study in your home country are similar in some respects to studying a Bachelor of Business in Accounting in Australia.

31. The tribunal is concerned that you have already completed the relevant cooking and the hospitality subjects, as well as holding an Advanced Diploma in Management and that you have previously not completed an Advanced Diploma of Accounting.  The tribunal has concerns that the Bachelor course that you are currently enrolled in, due to the nature of its field of study, is not consistent with your current level of education.  This is because of the previous studies you have completed in your home country and also the previous attempts at studying accounting and business in Australia.

32. The tribunal has considered whether the proposed course will assist you in obtaining employment or improving your employment prospect in your home country.  As noted already, you already have completed a relevant array of courses in Australia and in your home country.  You have completed a Diploma and Advanced Diploma of Management, a Diploma of Hospitality and a Certificate IV in Commercial Cookery.  Added to this is the fact that you have, for the last few years, been working as a chef in Australia for restaurants and in a hotel.

33. You have a plan to open your own restaurant in Pakistan with your brother.  The tribunal considers that your work experience, the qualifications that you have currently obtained in Australia, along with the qualifications that you hold from Pakistan prior to coming to Australia, all mean that you are more than adequately equipped with the skills and knowledge required to open and run, successfully, a restaurant business.  The fact that you are drawing on your experience serving fast food, and this is something that you intend on serving in your restaurant, shows how heavily reliant you are on your work experience in Australia.

34. The tribunal does not consider that the proposed Bachelor of Business Accounting course will assist you in obtaining employment or improving your employment prospect in your home country.  This is because you are already equipped with the skills and knowledge to do this, you have the land where you can open the business, and having accounting skills is not a requirement that most restauranteurs require or even hold qualifications in this area.

35. Whether the course is relevant to your past or future employment, the tribunal considers that completing a Bachelor of Business in Accounting is minimally relevant to opening and running a restaurant in Pakistan.  As already explained, you have the necessary skills and knowledge to run a hospitality business and you also have the necessary skills to cook in such a business.

36. The vast majority of restauranteurs, be it in Pakistan or in Australia, would not hold accounting qualifications, therefore it is not particularly relevant to running a restaurant.  It follows that the tribunal does not consider that the proposed course will assist you in terms of remuneration that you can expect to earn using all of your qualifications in your home country or third country.

37. Lastly, the tribunal has considered your immigration history.  It notes that since you arrived in Australia you have now spent a total of 3171 on-shore in Australia, or in other words eight years and eight months.  During that time you have spent a total of 82 days, or approximately three months, in your home country.  This is a lengthy period of time to have remained in Australia on temporary visas.  This suggests that your ties to your home country are not significant incentive or sufficient incentive for you to wish to return there and it is suggestive of you using the student visa to maintain ongoing residence in Australia.

38. You have not raised any other relevant matter to be considered.

39. Having considered your circumstances as a whole, including the issues in Direction Number 69, the tribunal is not satisfied you are a genuine student who intends to stay in Australia temporarily. Therefore, the tribunal finds you do not meet clause 500.212.

40. It is therefore the decision of this tribunal to affirm the decision under review. 

    DECISION

41. The Tribunal affirms the decision under review.

    Elizabeth Tueno
    Member