Bilal (Migration)

[2019] AATA 2173

Bilal (Migration) [2019] AATA 2173 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Bilal

CASE NUMBER:  1713406

HOME AFFAIRS REFERENCE(S):           BCC2017/800429

MEMBER:David Barker

DATE:4 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

·cl.500.212 of Schedule 2 to the Regulations.

Statement made on 04 March 2019 at 11:15am

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) visa – genuine temporary entrant – questions over study history – previous courses cancelled – plausible reasons given for study history and goals – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 499,
Migration Regulations 1994 (Cth), 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 and Border Protection on 9 June 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 February 2017. 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 there was insufficient evidence to demonstrate that the applicant is a genuine temporary entrant.

4. The applicant appeared before the Tribunal on 21 November 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 matter should be remitted for reconsideration.

   BACKGROUND

7. The applicant is a national of Pakistan and is 27 years old.

8. The Department delegate’s decision record, a copy of which was provided with the review application states the applicant first arrived in Australia in March 2015, as the holder of a TU-573 Higher Education Sector student visa to study a Master of Business Administration (MBA) and Master of Professional Accounting (MPA), with the MPA finishing in December 2017 and the MBA finishing in July 2019. 

9. The delegate noted that an examination of the Provider Registration and International Student Management System (PRISMS) indicated that the applicant had his previous enrolment in an MBA, MPA Diploma and Advanced Diploma in Leadership and Management cancelled and had only finished a General English course since arriving in Australia in 2015.  The delegate noted the applicant had failed to declare a refusal of an offshore student visa which he had applied for in 2014 and that he failed to give strong reasons to satisfy the delegate that the proposed study plan will assist him to obtain employment or improving his employment prospects in his home country or a third country.

10. In response to an invitation to the applicant from the Tribunal to provide documents or arguments he wished to rely on in his review, the applicant provided documentary evidence including, but not limited to, evidence of his current and past academic studies, submissions from his representative and a written statement, which relevantly stated:

    l am an International Student here who came to study ELICOS leading to MBA program

    I applied my visa extension to study a course package - Master's degrees in Professional Accounting (MPA) & Business Administration (MBA) and my visa was refused on the grounds of not meeting the Genuine Temporary Entrant Criteria.

    I have provided the detailed grounds to my Migration agent Mr. Madan, who is representing me in my merit's review appeal to the AAT.

    I declare that l am a genuine temporary entrant and have the sole purpose to temporary stay in Australia for studying and eventually going back to my home country.

    I did face some Issues with my study, but I have overcome them with focus on study, determination and have completed my first course in the package — Master's degree in Professional Accounting (MPA) in November 2018

    Since I have completed my MPA, I will need to do only 4 subjects to complete my MBA degree, which I will complete by July 2019

    I have family ties in the form of being the eldest son and child of my parents and the heir to the property owned by my family. I belong to a decent business family where my father is running his own hair salon. He was working previously in Middle East, but returned to Pakistan also for family reasons. Even I have same level of commitment to go back to my home country.

    I mentioned in my GTE statement provided for visa extension that I want to do my own business in accounting field itself. At that time, I was not knowing how detailed it should be and relied on my education and migration agent for the same. My business will be providing services like tax advice, online software based document storage, book keeping etc. and side by side will also do other financial services like advising people on taxation benefits, financial matters, etc. by following Australian systems. I want to establish a firm which provides many services for existing businesses in my city. I have seen many accounting software programs being used by accountants and businesses here in Australia like Xero, Officio, MYOB, which are being used by companies to have a day to day control on finances and update on profitability as well. I have seen how things work in Australia where accountants are not just tax agents but act like financial planners for budgeting as well. I want to bring in such systems in my home country and plan my career well. My family business can give me a good living, but my key focus is to do something professional by using the qualifications which I have learnt from Australia. Since I have completed my MPA, I am in a good position to plan further, but will proper implementation after my MBA.

    I never intended to hide any information about my previous visa refusals and had provided all information to my agent who applied visa extension on my behalf. l was not given any draft version of file for rechecking as well. Even when I was in Pakistan and was interviewed by case officer at time of my first visa grant (offshore),

    I told about my past visa refusals. So, I had no reason or intentions to hide it this time. My visa was applied in Feb 2017, when my one trimester had finished and another was commencing, so my focus and mind was fully busy on academics and was focussing only on doing well in study. So, I used the services of an education and migration agent who did not provide full information ahead and even dld not explain me about how detailed the GTE statement should be.

    I always focussed on my studies and In spite of problems, I have completed my MPA degree and request to be understood by the AAT. Request to please assess my case and efforts as a genuine student

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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 intends genuinely to stay in Australia temporarily.

12. 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?

13. 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.

14. 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.

15. I found the applicant to be a credible witness who gave their oral evidence in a calm, matter of fact manner without embellishment.  The applicant’s oral evidence is consistent with the written submissions and other documentary evidence that he has provided with his review application and I am satisfied weight can be placed on the applicants’ evidence.

16. The applicant gave evidence he completed a Bachelor of Commerce degree prior to coming to Australia and that when he came to Australia he was enrolled to undertake a MBA program, but when it became apparent to him that he could do a combined MPA and MBA program he changed his enrolment to that course package.  he said this may have contributed to his student records showing some course cancelations.  he said he had some initial difficulty coping with three MPA and was advised by an education consultant to put his MPA study on hold and to do a leadership and management course so as to familiarise himself with study methods in Australia,  he completed a few subjects in the leadership and management course and then re-enrolled in the MPA / MBA program.   He said that he has recently completed the MPA and because of the combined nature of the courses, he is given credits for some of the subjects in three MBA, so he will finish this latter course in July 2019.

17. The applicant gave evidence that he intends to return to Pakistan after completing the MBA in July 2019 and that his plan is to start his own accounting business.  He said that he  wants to take the business model of a general Australian accounting practice to his home country, where accountants do not traditionally offer the range of financial  advice and other services that are normally provided by Australian accountants.

18. The applicant gave evidence he has no relatives in Australia and that he maintains regular communication with his family in Pakistan. The applicant gave evidence he has part time work as a hairdresser, having learned this vocation from his father and that he earns between $350 to $400 per week, which he puts towards his education and regular living expenses.  

19. Having considered the applicant’s evidence during the hearing and the applicant’s circumstances overall, I am satisfied that his explanation for both his study history and study goals is both plausible and reasonable.  I accept that the applicant does not have relatives in Australia and that he has significant family ties to his home country.  I note the applicant is working part time in Australia but am not satisfied this employment provides him with a clear incentive to seek to remain his residency Australia for economic reasons.  I am satisfied the applicant has provided a credible plan for how he will apply skills and qualifications he has gained in Australia upon his return to his home country.

20. On the basis of the above, the Tribunal is satisfied that the applicant intends genuinely to stay in Australia temporarily. Accordingly, the applicant meets cl.500.212(a).

    Does the applicant intend to comply with visa conditions?

21. For the applicant to meet cl.500.212(b), the Tribunal must be satisfied that the applicant intends to comply with any conditions subject to which the visa is granted, having regard to the applicant’s record of compliance with any condition of any visa they previously held, and the applicant’s stated intention to comply with any conditions to which the visa may be subject.

22. A visa granted to an applicant who meets the primary criteria must have the following conditions imposed (cl.500.611(1)): 8105 (work limitation), 8202 (enrolment/course progress/course attendance), 8501 (health insurance), 8516 (continue to satisfy criteria), 8517 (dependents’ education), 8532 (arrangements for under 18s) and 8533 (notify address/education provider).

23. The Tribunal does not have any evidence to indicate the applicant has not complied with visa conditions in Australia. While the applicant has gaps in his studies, he has provided a plausible explanation for these gaps and his current circumstances. The Tribunal takes into account the fact the applicant is currently studying and is making good progress towards completing his higher education sector studies and that it is a relatively short period of study before he completes the MBA. 

24. On the basis of the above, the Tribunal is satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b).

    Is the applicant a genuine applicant for entry and stay as a student because of any other relevant matter?

25. For the applicant to meet cl.500.212(c), the Tribunal must be satisfied that the applicant is a genuine applicant for entry and stay as a student because of any other relevant matter (in addition to the requirements in cl.500.212(a) and (b)).

26. The Tribunal has considered the applicant’s circumstances as a whole and has given weight to the applicant’s claims of wanting to improve his career prospects in Pakistan and that he is studying in a field related to his existing qualifications in accounting and commerce. The Tribunal has also placed weight on the fact the applicant has displayed consistency in his endeavours to complete his current study pathway.  

27. Accordingly, the Tribunal is satisfied that the applicant is a genuine applicant for entry and stay as a student as required by cl.500.212.

28. Given the above findings, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 500 (Student) visa.

    DECISION

29. The Tribunal remits the application for a Student (Temporary) (Class TU) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 500 (Student) visa:

    ·cl.500.212 of Schedule 2 to the Regulations.

    David Barker
    Member