DANISH (Migration)

[2018] AATA 3244

DANISH (Migration) [2018] AATA 3244 (15 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad DANISH

CASE NUMBER:  1709613

HOME AFFAIRS REFERENCE(S):           BCC2017/934840

MEMBER:Penelope Hunter

DATE:15 August 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 15 August 2018 at 3:31pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Genuine temporary entrant criteria – Poor academic record – Failed to complete previous course –Multiple changes of study fields – Use of student visa program to maintain residency – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359AA, 499
Migration Regulations 1994 (Cth), Schedule 2 cls 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 18 April 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 9 March 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 visas 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 the applicant with a genuine applicant for entry and stay Australia temporarily as a student.

   BACKGROUND

   Application to the Department

4. The applicant is a citizen of Pakistan and arrived in Australia on 17 February 2013 on a student visa (Subclass 573)

5. The applicant applied to the visa in order to undertake study in a Bachelor of Tourism and Hospitality due for completion on 12 July 2019.  He claimed that after obtaining his degree he wished to go back to Pakistan and make a career in tourism management. He hoped to acquire expertise in tourism management that would enable him to work as a self-employed professional and his abilities would be beneficial for the re-birth of the tourism industry in his country.

6. The delegate in their decision, copy of which the applicant has submitted to the Tribunal, set out the following reasons for refusal of the visa;

   i.The applicant’s academic records indicate for the period under which he held his previous student visa he had failed to complete any recognised course in Australia. He had extended his studies in Tertiary Preparation multiple times. His academic transcript indicated that he only passed 7 units over a 3 year period and failed units on 12 occasions. His remaining enrolments with the University of Newcastle were cancelled in November 2015. The applicant then enrolled in a Diploma of Travel and Tourism  from 15 February 2016 until 10 February 2017.  The records indicated that Strathfield College cancelled his enrolment on 22 November 2016 for unsatisfactory course progress. His transcripts indicated that he had failed all units in the course. As the holder of a student visa the applicant had failed to maintain enrolment in a higher education sector course for the period November 2015 to March 2016 and he had failed to progress academically, not having completed any course and being reported by one of his education providers for unsatisfactory course progress.

   ii.With his proposed study, the applicant would be extending his stay in Australia on a temporary student visa to approximately 61/2 years. The applicant’s behaviour was not considered consistent with a period who had made a considered decision and significant financial commitment to study overseas.

   iii.The applicant had entered Australia to study Information Technology and had changed the field to Tourism and Hospitality. It was considered that he had not provided any considered explanation for the change in his academic pathway.

   Tribunal application

7. Prior to the Tribunal hearing the applicant submitted a new Confirmation of Enrolment in a Bachelor of Business with course dates from 4 December 2017 to 31 July 2020.

8. The applicant appeared before the Tribunal on 14 August 2018, to  give evidence and present arguments.

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

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

    RELEVANT LAW, FINDINGS AND REASONS

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 satisfies cl.500.212.

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. 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.

16. The Tribunal is not satisfied that the applicant is actively engaged in study in Australia. The applicant confirmed that he had changed his course of study from Tourism and Hospitality to Business/Accounting. When asked by the Tribunal why he had changed his enrolment from Tourism, he claimed that he felt that like there were not enough jobs in that field. The Tribunal asked the applicant how he was aware that there were jobs in accounting. He claimed that friends had told him. The applicant gave evidence that he was still enrolled and attending his Bachelor of Business. However, when asked how he was progressing in his course, the applicant advised that he had failed all of his subjects in his first semester. Additionally, pursuant to the provisions of s.359AA of the Act the Tribunal discussed with the applicant information contained in his PRISMS records that in between the cancellation of his enrolment in the Bachelor of Travel and Tourism and his current enrolment he had enrolled in a Diploma of Hospitality Management commencing on 9 October 2017, which was cancelled in December 2017 for non-commencement of studies. The applicant chose to respond immediately and confirmed for the Tribunal that this was correct, he did not offer an explanation for the change in enrolment. The Tribunal finds that the applicant has enrolled in several different areas of study, unrelated to previous study and he has not provided satisfactory explanations for these changes. Other than being told by friends that there were jobs in accounting,  the applicant had not demonstrated to the satisfaction of the Tribunal the value of the course to his future, in terms of his remuneration and employment prospects, when taking into consideration the time and expense of study in Australia. 

17. The Tribunal’s concerns about the applicant’s engagement in his studies were further intensified when his academic history was considered. The applicant was asked whether he had satisfactorily completed any course in Australia, and he responded that he had not.  The applicant confirmed that he had originally come to Australia to study Information Technology. He acknowledged that he had he not started any of his initial proposed courses, and that he had enrolled in a Tertiary Preparation course 7 times and did not completed that course. The applicant acknowledged that he had an unsatisfactory record of academic performance. When discussed with him at the hearing, he did not dispute any of the findings of the delegate in their decision with regard to his academic history. When asked by the Tribunal whether he had any explanation for his academic performance, the applicant claimed that he had issues in his family that were causing a lot of stress. The applicant was invited to explain and expand upon these issues but did not wish to discuss them. The Tribunal explained to the applicant that it could not give much weight to this claim without further information or evidence, however the applicant still did not wish to provide further information. In response to additional questioning from the Tribunal the applicant confirmed that he had not sought any assistance with these issues at the time. The applicant also advised that he had only returned home on one occasion since his arrival in 2016. The Tribunal then discussed with the applicant his enrolment in the Diploma of Travel and Tourism at Strathfield College, according to the records that he had submitted, this course was undertaken in 2016, some years after his claimed family issues. However, his transcript revels that he was found not competent in every single subject, and the applicant was asked to explain this record to the Tribunal. The applicant’s evidence was that he did not attend, he claimed that initially he was not interested and not able to study because he was not feeling well. Again, in response to questions from the Tribunal the applicant confirmed that he had not sought any assistance for any condition at this time. It is considered that the primary purpose of the applicant being in Australia on a student visa was to study and progress academically. Yet, on his evidence, the applicant has not completed any of the courses in which he has enrolled. The Tribunal is not satisfied that the applicant has adequately explained what he himself acknowledged at the hearing to be a history of poor academic performance. He has been onshore since 2013 and engaged in several years of study without having yet successfully completed a qualification, and this was inconsistent with the actions of a genuine student.  

18. The Tribunal asked the applicant why he could not undertake similar courses in his home country. The applicant responded that he had been in Australia a long time and that it would be shameful to return without a degree.  The Tribunal acknowledges that this may be the case however, the applicant’s study in Australia is clearly not providing him with any academic results, and in the circumstances, the Tribunal is not satisfied that there are reasonable grounds for the applicant not undertaking the course in his home country. Particularly, learning accounting standards more relevant to Pakistan, if that is to be the applicant’s future profession.

19. It is acknowledged that the applicant has his parents in his home country, as well as two of his sisters. However he has only returned on one occasion despite claimed family problems that substantially influenced his ability to study in Australia. The applicant’s family ties were found not to constitute a strong incentive when considered against the fact that he had been living independently in Australia since 2013. He did not claim to have any assets or financial resources personally in his home country.

20. The applicant denied that there were any circumstances of civil or political disturbance in his home country that would act as an incentive for him to remain in Australia.

21. In Australia, the applicant has family in the form of his sister, who is studying in Melbourne. The applicant acknowledged that he had some friends in Australia. The applicant claimed that he had not engaged in any work, but had been supported by his father while studying in Australia. This claim raised further concerns for the Tribunal, given the time that the applicant had spent studying in Australia without achieving any qualifications. The Tribunal considered that the applicant had not credibly accounted for his circumstances while onshore and this raised further concerns that the applicant’s potential circumstances in Australia may provide incentives for them to remain in Australia for purposes other than that of a genuine student.

22. The concerns raised above lead the Tribunal to not be satisfied that he is not genuine in his reasons for studying in Australia and why he wishes to undertake his proposed course. Rather it is of the view he is using the student visa program to maintain residence in Australia.

23. Based on what is evidenced of the applicant’s circumstances overall, including his immigration and study history, his circumstances abroad and in Australia and other matters the Tribunal considers relevant, including in respect of Direction 69, as detailed above, the Tribunal is not satisfied that the applicant is a genuine applicant for entry and stay as a student, because the Tribunal is not satisfied that he intends to genuinely stay in Australia temporarily having regard to the evidence advanced and considered cumulatively above.

24. The applicant does not cl.500.212(a) of Schedule 2 to the Regulations.

25. Furthermore, regarding the applicant’s intentions to comply with the conditions subject to which the visa is granted. The Tribunal considered the applicant’s evidence at the hearing that he now believed that he was mentally ready to undertake study. However, on the evidence since he applied for this visa, the applicant did not proceed with his Bachelor of Tourism, and he did not proceed with his enrolment in the Diploma of Hospitality Management. In addition he had already failed the first semester of his current Bachelor of Business. It was also his evidence that he had also sought any assistance for issues he claimed were impacting upon his previous study attempts. The applicant has also conceded to the Tribunal at the hearing that the findings by the delegate in their decision, that he had filed to maintain enrolment in a Higher Education Sector course from November 2015 to March 2016. On the basis of the above, having regard to his academic performance to date and the evidence before it, the Tribunal is also not satisfied that the applicant intends to comply with the conditions subject to which the visa is granted as required by cl.500.212(b) of Schedule 2 to the Regulations.

26. 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 of Schedule 2 to the Regulations.

27. 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

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

    Penelope Hunter
    Member