Ali (Migration)

[2017] AATA 3097

Ali (Migration) [2017] AATA 3097 (3 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nauman Ali

CASE NUMBER:  1514455

DIBP REFERENCE(S):  BCC2015/2374175

MEMBERS:Tim Connellan (Presiding)

Michael Ison

DATE AND TIME OF

ORAL DECISION AND REASONS:          3 October 2017 at 4:48 pm (VIC time)

DATE OF WRITTEN RECORD:                1 November 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 01 November 2017 at 5:21pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 572 Vocational Education and Training Sector – Genuine Student – Enrolment history – Repeated enrolment in courses – Courses in unrelated fields – Business plan

LEGISLATION
Migration Act 1958, s 359AA
Migration Regulations 1994, Schedule 2 cl 572.223

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 9 October 2015 to refuse to grant the visa applicant a Student (Temporary) (Class TU) Subclass 572 visa under the Migration Act 1958 (the Act).

2. At the hearing on 3 October 2017 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. To be eligible for the grant of a student visa, applicants must be both genuine temporary entrants and genuine students.  To be a genuine temporary entrant, your circumstances must support a genuine intention to remain in Australia temporarily. 

4. You applied for a student visa on 17 August 2015 and your application was refused on 9 October 2015, because having considered your circumstances, the delegate found you were not a genuine temporary entrant but were using the student visa program to maintain residence in Australia.  You appealed that decision to be reviewed by this Tribunal and with your application you included a copy of the primary decision.

5. As was explained in that primary decision, when considering if an applicant is a genuine temporary entrant it is necessary to have regard to what is known as Ministerial Direction No. 53, and the issues in that direction.  They were detailed in the primary decision, and they include your circumstances, the value of your courses to your future, your immigration history, your incentive to stay in Australia or return home, if you are using the student visa program to maintain ongoing residence in Australia, and any other relevant matter.

6. It is not meant as a checklist but it is a guide to weigh up an applicant’s circumstances as a whole, in reaching a finding about whether an applicant satisfies the genuine temporary entrant criteria. 

7. The role of the Tribunal is to take a fresh look at your application, consider your circumstances, the issues in Direction 53, and be satisfied you are a genuine student who intends to stay in Australia temporarily.

8. You told the Tribunal you had read and understood the primary decision which we discussed today in some detail.  That decision, and its detailed references to the issues in Direction 53, put you on notice of the issues in your case.

9. When we sent you the hearing invitation, we advised that we would assess whether you met the genuine temporary entrant requirements again putting you on notice of those issues we would consider.  And we asked you to provide a statement addressing those issues in Direction 53.

10. You did not respond to that request and did not provide a statement.  Your agent, Mr Carmody provided a letter detailing some of your history and stating that you would return home at the completion of your studies to support your family who he stated, are aging.  You told us that your father is 51 or 52, actually I would not have thought that he is someone in this day and age who is aging, however the letter did not address all the issues in Direction 53.

11. You provided evidence that you are currently enrolled in and are studying an Advanced Diploma of Hospitality Management, a course scheduled to run until January 2019.  We asked you to provide evidence of your past studies.  You did not respond, but you have previously provided evidence to the Department.

12. In fact, Mr Carmody has emailed us evidence this afternoon that you have completed:  a Certificate IV in Business (a six month course) a Diploma in Business (a six month course)  a Certificate IV in Small Business Management (a six month course);  a Diploma of Management (a six month course)  a Certificate III in Commercial Cookery, which I am not sure how long exactly that course took but I suspect it was one year.  You have provided today a Certificate IV in Commercial Cookery (a six month course).  You have provided evidence that you have completed a Diploma of Hospitality, which again is a six month course and you are currently studying this course that commenced back on 1 May 2015.

13. So you have been in Australia for over six years and have completed courses that have taken in total about four years.  The Tribunal does not consider this the progress of a genuine student. 

14. You came to Australia in August 2011 as the holder of a 572 student visa.  You have subsequently been granted a further 572 visa and this application is for a third 572 visa.  So you have chosen to extend your stay a couple of times, and now wish to stay longer.

15. Since arriving in Australia you have been enrolled in a large number of courses, many on multiple occasions, many of which have been cancelled. We went through those enrolments pursuant to section 359AA and they indicate that in chronological order you have been enrolled in an English course, a Certificate IV in Business, a Diploma of Business (three times) a Certificate III in Hospitality, Commercial Cookery, a Certificate III in Small Business Management, a Certificate III in Hospitality, a Certificate IV in Hospitality, a Certificate III in Hospitality, a Diploma of Marketing, a Diploma of Hospitality, a Certificate IV in Hospitality, Diploma of Management, Advanced Diploma of Management, Certificate IV in Hospitality, Advanced Diploma of Business, a Diploma of Hospitality, a Certificate III in Commercial Cookery, a Diploma of Hospitality, a Certificate IV in Commercial Cookery, a Diploma of Hospitality and your current course an Advanced Diploma of Management.

16. Your repeated enrolment in courses you have either not started or not completed is not the behaviour of a genuine student.

17. The primary decision referred to a statement you wrote on 11 September 2015, and submitted in support of your application, in which you claim you had successfully finished all the courses you had started.  Given your enrolment history we have discussed, it does not appear to be that is exactly correct.  Although you claim that the only course you have studied and not completed was a Certificate III in Commercial Cookery that you say you stopped studying after discussion with your parents but then went back to studying later after further discussion with your parents.

18. You have been enrolled in a number of short and relatively inexpensive courses in unrelated fields which leads the Tribunal to find you are not following a set path of academic progress but are using the student visa program to maintain residence in Australia and to circumvent permanent migration programs.  In the statement your agent Mr Carmody submitted last week, which I presume reflects information you provided, it states:

    In the beginning, when Mr Ali came to Australia, he was led to believe that courses in business, management and marketing would lead to a successful career and a happy life after he went back to Pakistan.  But Mr Ali found that he did not have any passion for the corporate life of business and marketing, instead finding in himself a passion for cooking and hospitality.

19. Your enrolment history does not reflect this.  As I have already stated after you did a Certificate IV and a Diploma of Business you then enrolled in a Certificate III in Hospitality.  You did not complete this but enrolled in a Certificate IV in Small Business Management.  Then, again Hospitality courses, none of which you completed, before enrolling in the Diploma of Marketing.  Then back to Hospitality, a Diploma of Management, an Advanced Diploma of Marketing, back to a Certificate IV in Hospitality, then Advanced Diploma of Business, before going back to Hospitality studies.

20. This is not the pattern of somebody studying business marketing and management before deciding it was not for them, and choosing hospitality.  Despite studying business and management your work history in Australia is of having worked as security and crowd control at a bar for just over a year, and driving taxis for some years, a job you are still doing.

21. When I asked why you have not done work in your chosen field, you then made the comment, that, “Well, I did at one stage work in a Thai restaurant,” although that has not come up before.  You say your ultimate goal, well, there are a range of things you have said.  You said today you want to go back and open a hotel restaurant.  Basically in your written statements you have provided only motherhood statements about your future, saying you always wanted to open your own business in Pakistan, and you now felt confident to manage your own business there or anywhere in the world.

22. In an earlier statement said you planned to create a restaurant chain.  Mr Carmody’s recent statement said you had an in-principle agreement with your cousin to commence a restaurant business on land he owned and is currently developing.  An unusual step if you only have an in-principle agreement.  But when I asked you about this business you are talking of and asked how many rooms this hotel is going to have, you say, “10, 15 or 20.” 

23. When asked about the size of the restaurant you plan, the answer is “50 or 100 plus.  We will have one or two chefs, three or four waiters, two or three cooks, 10 or 15 staff in total.”  When I say, “What about cleaning staff for the restaurant and the hotel?” you say “Well, if you include those, it would be over 20.”  Your inability to answer questions or provide details about this business with any degree of specificity leads me to find you do not have a considered business plan as the basis to your studies.

24. While I acknowledge you have family back home which may provide some incentive to return, you certainly appear settled in Australia where you have a history of work.  While you say it is your intention to return home, having been here for over six years you now seek to remain until 2019.  Your words and your actions seem to be different.  The Tribunal believes your current circumstances present as a strong incentive to remain in Australia and does not believe you have provided evidence of any incentive to return which outweighs the issues we have discussed and your immigration history.

25. So having considered your circumstances as a whole, including the issues in Direction 53, I am not satisfied you are a genuine student who intends to stay temporarily in Australia. Therefore, I find you do not meet clause 572.223(1)(a). It is, therefore, the decision of this Tribunal to affirm the decision under review, and this decision was made at 4.48 pm on this 3 October 2017.

26. Thank you for your time here today, Mr Ali. Thank you, Mr Carmody.  A copy of the decision, telling you that this matter has been affirmed, will be emailed to you in the next 24 hours.  Thank you for your time here today. This hearing is concluded.

    DECISION

27. The Tribunal affirms the decision under review.

    Tim Connellan
    Member

    
    

    Michael Ison
    Senior Member