Ahmad (Migration)

[2018] AATA 4555

Ahmad (Migration) [2018] AATA 4555 (29 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zeeshan Ahmad

CASE NUMBER:  1707929

HOME AFFAIRS REFERENCE(S):           BCC2016/4324965

MEMBER:Stephen Witts

DATE:29 August 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 29 August 2018 at 2:00pm

CATCHWORDS
MIGRATION –Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – Genuine applicant for entry and stay as a student – Maintaining ongoing residency in Australia – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 499
Migration Regulations 1994, Schedule 2, cls 500.211, 500.212, 500.218

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 and Border Protection on 30 March 2017 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 21 December 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 23 August 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Urdu and English languages.

5. The applicant was assisted in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 genuinely intends to stay in Australia temporarily.

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

8. 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?

9. 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.

10. 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.

11. At the hearing the Tribunal had a discussion with the applicant regarding the considerations outlined in Ministerial Direction 69.

    Background

12. According to the delegate’s decision record, provided by the applicant, the applicant first arrived in Australia from Pakistan on 14 March 2013 on an initial Student (subclass 573) visa valid until 21 December 2016. The applicant subsequently made an application for a Student (subclass 500) visa on 21 December 2016. This application was refused by the delegate on 30 March 2017.

13. According to the applicant he is currently enrolled in a Diploma of Hospitality Management which began on 23 March 2018 and is due for completion on 16 September 2018. The applicant is then enrolled in an Advanced Diploma of Hospitality Management from 22 September 2018 until 9 March 2019.

14. According to the delegate’s decision record, provided by the applicant, and to the applicant’s s359(2) material (AAT file folio 28-32), and to the applicant’s evidence, the applicant has been enrolled in the following courses here since his arrival in 2013: a Certificate III in Spoken and Written English finished in 2013, a Certificate IV in Spoken and Written English-Further Studies finished in 2013, a Certificate IV in Frontline Management cancelled in 2013, a Diploma of Management cancelled in 2014, a Bachelor of Business (Accounting) cancelled 2014, a Certificate III in Light Vehicle Mechanical Technology cancelled in 2016, a Certificate III in Commercial Cookery finished in 2017, a Certificate IV in Commercial Cookery finished in 2017, a Diploma of Hospitality cancelled in 2017, and a Bachelor of Hospitality Management cancelled in 2017.

    Circumstances in home country

15. The applicant stated that he finished high school level education in December 2009 and does not have any other academic qualifications.

16. The applicant stated that he was advised by an educational consultant in Pakistan that the best countries to study in were Australia and the UK so he decided to come to Australia. He stated that he decided he “wanted to go abroad to study” and “the education level is bad” back in his home country.

17. According to the applicant’s s.359(2) material, and the applicant’s evidence, the applicant has a mother and father, three sisters and a brother back in his home country. The applicant stated that he remains in regular contact with his family and did not indicate that he had any problems maintaining his personal relationships from here in Australia. The Tribunal attaches no weight to this is evidence of an intention to return.

18. In his statement to the Tribunal (AAT file folio 82) the applicant stated “I come from a higher middle class family which owns a rice mill and a store that sells rice and chili wholesale”.

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

    Circumstances and study in Australia and the value of the proposed course to the applicant’s future

20. The applicant stated that he rented in Glenroy with friends and that his family were assisting him in paying for his studies.

21. The applicant stated that since his arrival here in 2013 he has been back to his home country on four occasions for short periods of time. These occasions were in October 2013, January 2015, September 2017, and February 2018.

22. The applicant also confirmed that he had applied for a visitor visa to travel to the United States in October 2016 but that this application was refused. The applicant’s representative explained that visa applicants to the United States are often not given an explanation for visa refusal and the Tribunal does not find this evidence as adverse to the applicant.

23. According to the applicant’s s.359(2) material, and the applicant’s evidence, the applicant has had the following work since his arrival here in 2013: a dishwasher from June 2013 until March 2014 earning $400AUD per week, a charity bag distributor from December 2013 until August 2014 earning $28,000 per annum, a parcel delivery person from October 2014 until September 2016 earning $36,000 per annum, and an uber driver from October 2016 until the present earning $40,000 per annum. The Tribunal is concerned by this evidence and finds that the economic circumstances of the applicant here in Australia would present as a significant incentive for the applicant not to return to his home country despite his family’s economic status in Pakistan.

24. The Tribunal reviewed the applicant’s study history with him and asked the applicant to provide evidence regarding his study history here in Australia specifically his many cancelled enrolments during a prolonged period here since March 2013, and the many changes that he made to his study trajectory.

25. The applicant stated that he had been suffering from considerable homesickness here and also had received poor advice from his consultant or agent. Specifically he submitted that he enrolled in his mechanical course, a Certificate III in Light Vehicle Mechanical Technology, because his consultant told him to but then he soon found that it was not something he wanted to do. The Tribunal is concerned by this evidence as the applicant was unable to explain the reasons for his many cancelled enrolments and significant changes to the types of study he was engaged in. The Tribunal finds that this is evidence that the applicant is, in fact, using the student visa system to circumvent the migration program.

26. The Tribunal asked the applicant to outline the reasons for his study here in Australia and what he wanted to achieve prior to fulfilling his stated intention of wanting to return home. The applicant responded that “my father wanted to set up a business with me so he could join up with me and run a business”. The Tribunal is concerned by this evidence as this does not explain the varying courses of study undertaken by the applicant over a significant period of time.

27. The Tribunal asked the applicant to outline the reason for his current course of study in a Diploma of Hospitality Management and his future enrolment in an Advanced Diploma of Hospitality Management and how this would assist him in his stated intentions of running a business back in his home country with his father. The applicant stated that it was his intention to return home and open some form of restaurant or hospitality business with his father. The applicant did not provide any detailed information as to how his current course of study would assist him in that endeavour and what form of business he would seek to operate back in his home country. The applicant did not provide any information that would give confidence to the Tribunal that the applicant actually had a plan to open a specific business, subject to significant investment, back in his home country. The Tribunal finds that the applicant does not actually have a plan to open a specific business back in his home country.

28. The Tribunal also asked the applicant to explain why he had dropped out of his Bachelor of Hospitality Management, as that would be a more useful qualification that would assist him in his stated endeavours to open some form of restaurant or hospitality business back in his home country. The applicant did not specifically address this question, other than to refer to his diagnosed anxiety and depression.

29. The applicant explained to the Tribunal that many of the problems that he had experienced being able to study here in Australia was because of the anxiety and depression he was suffering from that at least partly originated from how upset he was after the death of his aunt in January 2015. The applicant also provided some material to the Tribunal to this effect. The Tribunal, although acknowledging the submissions made by the applicant and his representative on his behalf in this regard, and the material provided by his psychologist, finds that this is not an adequate explanation as to why the applicant, since March 2013, a period now of more than five years, has had many unsuccessful and cancelled enrolments, specifically cancelled enrolments in bachelor level courses, when the applicant could at the appropriate point of time, have deferred any of his enrolments or courses to seek the appropriate professional help and thereafter successfully resume his enrolments as the applicant’s stated intention was to be a student here in Australia and study successfully. The Tribunal finds that this is evidence that the applicant is not a genuine applicant for entry and stay as a student.

30. As stated, the applicant’s representative, on behalf of the applicant (AAT file folio 87-294) in a statement dated 20 August 2018 provided material to the Tribunal of a medical nature that indicated that the applicant had been suffering from anxiety and depression as a result of his aunt’s death on 22 January 2015. The applicant’s representative attached a report from the applicant’s psychologist which outlined that the applicant told him, the psychologist, that he had problems with attention span and concentration because of his depression. As stated the Tribunal is concerned by this evidence as the applicant has now been here in Australia on student visas, and associated visas, for some years. During this time the applicant has had numerous enrolments of an unrelated nature and since January 2015 has finished a number of qualifications including a Certificate III in Commercial Cookery, and a Certificate IV in Commercial Cookery. In the psychologist’s report it was also noted that “he told me that he cancelled some of the courses due to a disinterest and poor advice from educational agents in Pakistan “. The Tribunal is concerned by this evidence as the applicant is giving varying explanations for his study history failures here in Australia. The Tribunal finds that the material presented by the applicant’s representative is not sufficient to explain the applicant’s poor study history here in Australia.

31. The applicant, in his statement to the Tribunal (AAT file folio 80-82) stated that “I plan on using my hospitality skills to manage and run the business as a business manager. I plan on overseeing both the kitchen and manage the restaurant as a whole”. The applicant further stated “in addition to the rice mills in wholesale store, my father also owns a commercial building in our home town of Lahore, Pakistan which is wanted to make into a restaurant for a while now”. Although stating that he wants to open some form of restaurant business the applicant does not provide a business or financial plan that gives the Tribunal any confidence that there is any substance to this stated intention once he returns to his home country. The applicant also contends in this statement that he also will finish his automotive certificate and that he would have better job prospects in a family business. This, despite the fact that the applicant’s now stated intention is to open a restaurant business not an automotive business. The Tribunal finds that this demonstrates that the applicant is changing his stated intentions as he changes his enrolments to suit his stated course of action at any particular time. The Tribunal finds that this is evidence that the applicant is using the student visa system to maintain residence in Australia.

32. The applicant in his statement to the delegate (delegates file folio 21-24) stated that he wants to successfully complete his Bachelor of Hospitality Management after he has completed his other cooking courses and return to his home country to establish a family business that would be a five-star restaurant in a capital city of Pakistan. Despite this stated intention the applicant has not successfully completed his Bachelor of Hospitality Management and is still seeking to study low-level courses. No other information was provided by the applicant to demonstrate that he actually does have a coherent study and career plan for utilisation when he returns to his home country. In this statement the applicant also stated that he has “a genuine intention to complete bachelor of hospitality management at Melbourne Polytechnic and return to Pakistan after completion”. Despite this statement by the applicant he has not done so and is now studying a low level diploma course again.

33. When asked by the Tribunal to comment on material supplied in the delegate’s decision, provided by the applicant, that the applicant was in breach of visa condition 8202 (continue studying) and visa condition 8516 (maintain eligibility) the applicant referred to his ongoing psychological illnesses of depression and anxiety as stated reasons for his four-month study gap from July 2014 and for his inability to maintain his high-level study in his Bachelor of Business (Accounting) course. The applicant’s representative, on behalf of the applicant, stated that this four months study gap was insignificant and should not be taken into account in assessing the applicant’s application for another student visa. The Tribunal, although recognising that this study gap is not in itself a major cessation of studies, finds that the applicant was in breach of these visa conditions.

34. The Tribunal is also concerned that after cancelling his Bachelor of Hospitality Management the applicant has now gone on to study a Diploma of Hospitality Management. The Tribunal finds that the applicant is currently undertaking a course consistent with his other low level VET  level education and that this course, and his proposed future course, will not assist the applicant to obtain employment or improve employment prospects in his home country. The Tribunal also finds that this course, a Diploma of Hospitality Management, will not assist the applicant’s proposed future employment either in his home country or a third country.

35. When asked by the Tribunal as to why he didn’t go home at some point during his time here and study his cooking and hospitality courses back in his home country whilst working with his father to open a restaurant business, which is his stated intention, the applicant stated that there were limited opportunities to study such or similar courses back in his home country. The applicant’s representative, on behalf of the applicant, also indicated that it is difficult to ascertain whether courses of a similar nature would be available in the applicant’s home country of Pakistan. The Tribunal, although acknowledging that comparisons of this nature can be difficult, nevertheless finds that the applicant could have found suitable cooking related courses to have studied back in his home country after having endured  four cancellations in a row here in Australia in his frontline Management course, his diploma course in management, his bachelor level course in business, and his automotive course, it was easily open to the applicant to decide at this point to return home to his home country to study cookery type courses back in his home country. The Tribunal finds that the applicant did not have reasonable reasons for not undertaking this form of study in his home country or region as similar courses in cookery and related areas would be available there. This would have given the applicant a chance to reassess his study undertakings and to pursue successful study back in his home country after several unsuccessful enrolments here in Australia at the same time as working with his father to create a new business venture in the restaurant business, which is the stated objective of the applicant. The Tribunal finds that this is evidence that the applicant is not a genuine applicant for entry and stay as a student.

1. The Tribunal finds that the applicant is using the student visa system to circumvent the intentions of the migration program in order to maintain residence in Australia.

2. On the basis of the above, the Tribunal is not satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant does not meet cl.500.212(a).

   Conclusion on cl.500.212

3. Accordingly, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

4. Given the above findings, the Tribunal finds that the criteria for the grant of a Subclass 500 (Student) visa are not met. The applicant does not claim to meet the criteria for a Subclass 590 (Student Guardian) visa. Accordingly, the decision under review must be affirmed.

   DECISION

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

   Stephen Witts
   Member