AMIN (Migration)

[2018] AATA 3238

AMIN (Migration) [2018] AATA 3238 (9 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samer Samir Hussein AMIN

CASE NUMBER:  1703904

Home Affairs REFERENCE(S):                BCC2016/3228412

MEMBER:David Barker

DATE:9 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 July 2018 at 3:45pm

CATCHWORDS
Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant – gaps in study history – academic progression – ceased study – studied unregistered courses – economic incentive – relative earning capacity – lack of time in home country – vocational goals – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 500.111, 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 and Border Protection on 17 February 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 28 September 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 was a genuine applicant for entry and stay as a student and that they intend to stay in Australia temporarily.

4. The applicant appeared before the Tribunal on 17 May 2018 to give evidence and present arguments. .

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

   Background

6. The applicant is a national of Egypt and is 38 years old.

7. The Department delegate’s decision record, a copy of which was provided with the review application, notes that the applicant first arrived in Australia in October 2009 as the holder of a Subclass 573 (Higher Education Sector) Student visa. Since arriving in Australia he has subsequently been granted a further Subclass 573 visa, which was valid until September 2012. The applicant was granted a Subclass 485 Skilled Graduate Temporary visa in March 2013, which was valid until September 2014.  He was then granted a further Subclass 573 visa, which was valid until September 2016.

8. The delegate had regard to the Provider Registration and International Student Management System (PRISMS) which documented the applicant’s study history in Australia.  This history indicated the applicant had applied to undertake a Master of Urban Development and Design.

9. The PRISMS record indicated the applicant has been enrolled in and completed the following courses since his arrival in Australia:

   ·Academic English;

   • Master of Design Science  (Sustainable Design)(Audio/Building Services/Building/ Design Computing/Digital Media/Facilities)  – cancelled March 2010;
   • Master of Design Science (Illumination Design)(Audio/Building Services/Design Computing/Digital Media/Facilities) - cancelled July 2010;

   ·Master of  Urban and Regional Planning – completed July 2012

   • Master of Urban Development and Design – cancelled March 2015 due to non commencement of studies.

10. The delegate noted the applicant had only completed the Academic English and Master of Urban and Regional Planning courses and had discontinued study in the other courses.  The delegate noted the applicant’s claim he had, during some of the gaps in his formal studies undertaken study in the French and Spanish languages, but was not satisfied he had done so in courses which were registered, for the purposes of the requirements set out in the Act.  The delegate expressed concern that the applicant had failed to respond to a request to provide information  as to his economic circumstances in his home country and of their employment in Australia, and as well that they were intending to undertake study in a  course they had previously opted to discontinue in 2015.

11. On 19 April 2018, the Tribunal wrote to the applicant inviting him to attend a hearing on 17 May 2018. That invitation among other matters, requested the applicant provide evidence of qualifications he has attained whilst in Australia and an explanation of any gaps in his enrolment, courses he has failed to complete and any documentary evidence relevant to this explanation. It noted the Tribunal will assess whether he intends genuinely to stay in Australia temporarily as required by cl.500.212(a) and asked him to provide a written statement addressing this issue by referring to Direction 69, which was attached.

12. At the hearing on 17 May 2018, the Tribunal received documents from the applicant including evidence of his current and past academic study in Australia, and a medical report, dated 13 January 2018 indicating the applicant’s father was admitted to a medical facility in Egypt, suffering from a broken shin bone.

13. Following the hearing on 17 May 2018, the Tribunal received further documents from the applicant including:

    ·a Confirmation of Enrolment (CoE)  regarding his enrolment in a Master of Urban Development and Design, which commenced on 27 February 2017 and will finish on 31 July 2018;

    ·emails regarding a scholarship the applicant received in 2012 to attend a lighting design conference in the United States of America;

    The hearing

14. The Tribunal raised with the applicant that the matter before it is whether he meets the requirements of cl.500.212(a). It outlined the section, the relevance of Direction 69 and that the Tribunal needs to be satisfied on the evidence before it that he is a genuine applicant for ‘entry and stay as student’.

15. The applicant refuted the delegate’s contention the course he is currently studying, a Master of Urban Development and Design is similar to the Master of Urban and Regional Planning he completed in 2012.  He said the latter course had a focus on urban development law in the Australian context, which limited how useful it would be to him in Egypt, due to the different nature of the legal and planning systems in his home country.   He said he had not undertaken study in a university in Egypt, as he would have not been accepted into such an institution there with his grades from secondary school.  He said he came to Australia and successfully completed the Master of Urban and Regional Planning and on the basis of that qualification was granted a Subclass 485 visa.  He said he was however not successful in getting work as most planning jobs are with local government in Australia and his lack of Australian citizenship counted against him when he applied for those jobs.

16. The applicant told the Tribunal that in response to his lack of success getting a planning job, he opted to refocus his career goal towards urban design and to also expanding his skills in second languages.  He conducted his own research into urban design whilst on the Subclass 485 visa and then enrolled at the University of NSW in a Master of Urban Development and Design. He said that he found this course to be very academically challenging and he withdrew from it in March 2015. He said he recommenced the Master of Urban Development and Design in March 2017, but then stopped attending classes around May 2017, just before the first semester exams.  He said this was because his father, who is his main source of financial support, had an accident in Egypt and the applicant decided he could no longer ask his father for money for his education and living expenses because of his father’s changed circumstances. 

17. The applicant said he undertook a French language course in the period since ceasing study in the Master of Urban Development and Design in May 2017.  He said he thought his studies in French would be an acceptable way for him to show he was maintaining his studies, as required by his visa conditions.   He said he was unaware, until recently that the French language course was not a ‘certified’ or recognised course for the purpose of satisfying his visa requirements. 

18. The applicant gave evidence he worked in a call centre in Alexandria, NSW from 2011 until his visa application was refused in early 2017 and he lost his work rights in Australia.  He said that since then, he has relied on his savings, selling possessions and some financial support from his siblings in Egypt.  He said he worked at a Microsoft helpdesk call centre in his home country, prior to his going abroad when he was around 29 years of age

19. The applicant gave evidence that he has no military service commitments in Egypt, nor concerns about returning there due to either civil unrest or the political situation there.  He said he has not travelled back to Egypt since his arrival in Australia in 2009, due to the expense involved, but that he has travelled to the Canada and the United States of America to attend conferences for which he was granted scholarships to help him the costs associated with attending these events.

20. As to his plans for the future, the applicant said he would like to study more design subjects and then return to Egypt and seek work in the design industry, with a focus on lighting design.   He said that if he is granted the student visa he will complete his studies in around 18 months and then return to Egypt, where his Australian design qualifications and his skills in the English, French and Spanish languages will enhance his employment prospects.

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. 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 applicant for entry and stay in Australia as a student.

22. 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?

23. 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.

24. 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.

25. Having considered the applicant’s claims against all the factors specified in Direction 69, and taking into account relevant information, the Tribunal finds the applicant does not satisfy the genuine temporary entrant criterion. This finding is based on several factors as outlined below.

26. The Tribunal accepts the applicant has provided sufficient evidence to demonstrate he successfully completed an Academic English course in 2009 and a Master of Urban and Regional Planning in 2012.  It is of concern that he has failed to complete any other registered courses since he came to Australia and that he has apparently not attended classes in the Master of Urban Development and Design since May 2017. He has proved a Confirmation of Enrolment for this latter course, which is due to finish at the end of July 2018. The Tribunal accepts the applicant’s evidence that he has found some of the courses he has undertaken whilst in Australia to be very academically challenging, but notwithstanding this, it is of significant concern that there has been a lack of consistent study and academic progression in the applicants study history in Australia since 2009.

27. The Tribunal accepts the applicant has a quite clear vision for his vocational future and has self directed his learning towards these goals through enhancing his second language skills.  The applicant can articulate what appears to be a viable vocational goal of working in lighting design in his home country, however his study history in Australia does not inspire confidence he will apply himself consistently enough to achieve the academic qualifications he has set for himself.  In forming this view, the Tribunal notes he has twice commenced a Master of Urban Development and Design course and subsequently ceased study in both of these post graduate degree programs.  The Tribunal acknowledges the applicant has undertaken studies in French and Spanish and accepts this will enhance his attractiveness to potential employers.  However, it is not apparent why he could not have undertaken such courses in his home country, or why he prioritised studying French rather than maintaining or resuming his study in the Master of Urban Development and Design course he stopped studying in May 2017.

28. The applicant’s migration history gives rise to some concern he has endeavoured to maintain his residency in Australia for reasons apart from making academic progress in a consistent pattern of study.  He maintained consistent employment between 2011 until his visa application was refused in early 2017.  For some of this period he was on a Subclass 485 visa, where he was not successful gaining work using the graduate qualification which would have been relevant to this visa and he appears to have maintained employment in the call centre job he had held since 2011. His employment pattern has therefore been significantly more consistent and stable than his study pattern whilst he has been in Australia.  This gives rise to some concern as to whether the applicant has had an economic incentive for maintaining his residency in Australia, which would be compounded by his relative earning capacity in similar call centre work roles in Australia and Egypt.

29. The applicant contends he will resume and then complete his intended studies in Australia in 18 months, which would provide a cumulative period of over 10 years in which he would have remained in Australia on temporary visas. Whilst it is apparent he has familial ties to Egypt, in the form of his father and siblings. The lack of time the applicant has spent in his home country over the period since 2009 gives rise to concern he has not maintained ties to his home country which would provide him with a strong incentive to return to Egypt.

30. The Tribunal accepts the applicant has no military commitments in Egypt, or concerns about civil unrest, or the political situation there, which could provide him an incentive to not return to his home country.

31. In making a decision in the particular circumstances of this matter, the Tribunal has considered all the available evidence, including the applicant’s immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69.  The Tribunal notes the applicant is currently enrolled in course in which he appears to have ceased study in or around May 2017.  Whilst he has undertaken study since that time in a French language course, this was not a registered course for the purpose of satisfying the requirements in cl.500.111. The Tribunal notes he has successfully completed only two of five registered courses he has enrolled in while on student visas in Australia since 2009.  The Tribunal has considered the applicants explanation for gaps in his study history, his plans for further study in Australia and his evidence about  his vocational goals for when he returns to Egypt and all the other matters he has raised.  However, for the reasons outlined above the Tribunal is not confident he will progress academically in his proposed study pathway and is not satisfied the evidence demonstrates that the applicant is seeking to undertake the proposed study for the reasons he claims. 

32. The Tribunal is therefore not satisfied that the applicant is a genuine applicant for entry and stay as a student and is of the view that the student program is only being used to maintain ongoing residence.

33. 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).

34. 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.

35. 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

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

    David Barker
    Member